Hallauer v. Spectrum Properties, Inc.

Decision Date22 February 2001
Docket NumberNo. 68554-1.,68554-1.
Citation143 Wash.2d 126,18 P.3d 540
CourtWashington Supreme Court
PartiesWilbur G. HALLAUER and Josephine Hallauer, husband and wife; and Champerty Shores Owners Association, a Washington nonprofit corporation, Petitioners, v. SPECTRUM PROPERTIES, INC., a corporation, Defendant, Ernesto C. Del Rosario and Madeliene B. Del Rosario, husband and wife, Respondents.

Mansfield, Reinbold & Gardner, Owen M. Gardner, Okanogan, WA, Perkins, Cole, Charles W. Lean, Charles B. Roe, Olympia, WA, for petitioners.

Maxey Law Offices, Bevan Jerome Maxey, Spokane, WA, Diane Marie Walker, Spokane, WA, for respondents.

MADSEN, J.

Wilbur G. and Josephine Hallauer, who hold a certificated water right to water from a spring on neighboring land, seek to condemn a way across that land for transporting water to their property for domestic use, and to ponds for fish propagation. The Court of Appeals held that because the Hallauers' property is not landlocked and alternative sources of water are available, the Hallauers failed to prove a reasonable necessity for condemnation. We reverse the Court of Appeals and hold that the Hallauers are entitled to proceed with their condemnation action.

FACTS

The Hallauers and respondents Ernesto C. and Madeliene B. Del Rosario own adjacent property on the shore of Lake Osoyoos in Okanogan County. Donald Thorndike was the Del Rosarios' predecessor in interest. In the mid-1970's, part of a bluff on Thorndike's property collapsed, revealing a natural spring. In the early 1980's the Hallauers built a home on their property with a heat pump and cooling system that used water from a well. The first winter, the heat pump froze because the water from the well was too cold for its proper operation. Mr. Hallauer learned that the water from the spring on Mr. Thorndike's property would be satisfactory for operation of the heat pump as well as for supplying water to ponds intended for fish propagation.

Mr. Thorndike and Mr. Hallauer agreed that Mr. Hallauer would apply to the Department of Ecology for a water right entitling him to withdraw water from the spring on the Thorndike property, and when the water right was granted Mr. Hallauer would pay Mr. Thorndike $500.1 In March 1982, Mr. Thorndike signed the application for the water right as owner of the property, and Mr. Hallauer signed as the applicant. In March 1984, Mr. Hallauer sent a letter to Mr. Thorndike saying the application had been approved and enclosed a check for $500.

Mr. Hallauer developed the spring and installed a pipeline to transport water from the spring to his property for the heat pump and fish ponds. The property on which the ponds are located was developed into the Champerty Shores development, a private community. In 1984, fish were added to the ponds. In October 1984, the Department of Ecology issued a certificate of water right.

Mr. Thorndike's property was acquired by Spectrum Properties, Inc. following foreclosure proceedings. In October 1989, Mr. Del Rosario entered into a real estate contract for the purchase of the property, took possession, and began managing an apple orchard on it. During roadwork on the property, the Hallauers' pipeline was discovered, and the Del Rosarios demanded that the pipeline be removed.

Litigation ensued. Although the Hallauers originally obtained a judgment quieting title to a prescriptive easement across the Del Rosarios' property, that decision was reversed on appeal. On remand, the Hallauers sought, among other things, to condemn an easement for a pipeline to carry water from the spring to their property. Petitioner Champerty Shores Owners Association was added as a necessary party plaintiff because it had taken ownership of the fish ponds and an interest in the spring right. The trial court held that the Hallauers had failed to show a reasonable necessity for a private condemnation. On appeal, the Court of Appeals affirmed. This court granted discretionary review.

ANALYSIS

Although several other grounds for relief have been argued during litigation between the parties, the only matter before this court is whether the Hallauers are entitled to condemn an easement across the Del Rosarios' property for a pipeline to transport water from the spring to their property for use in the heat pump and cooling system and as a water supply for propagation of fish.

The authority to condemn a right of way to transport water has long existed in this state, both by constitutional and statutory provisions. The chief question posed by this case is whether the showing of necessity to condemn a right of way to transport water is identical to the showing required to condemn a private way of necessity. The Court of Appeals held that "necessity" means the same in both contexts, relying on RCW 8.24.010. We disagree because RCW 8.24.010 does not apply in the context here.

As we explain below, RCW 90.03.040 provides the statutory authority for condemnation in this case. Among other things, the statute directs that "property or rights shall be acquired [through condemnation] in the manner provided by law for the taking of private property for public use by private corporations." RCW 90.03.040. Therefore, chapter 8.20 RCW (eminent domain by corporations), rather than chapter 8.24 RCW, provides the procedures for condemnation. RCW 8.20.070 states that at the hearing on a petition to condemn where the contemplated use is a public use, the court will enter an order of public use and necessity if it is "satisfied by competent proof that the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use ... that the public interest requires the prosecution of such enterprise ... and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise."

In order to determine whether the Hallauers are entitled to an order of public use and necessity, we examine both public use and necessity, as the three conditions set out in RCW 8.20.070 are interrelated. See State v. Belmont Improvement Co., 80 Wash.2d 438, 442-43, 495 P.2d 635 (1972); State v. Dawes, 66 Wash.2d 578, 583, 404 P.2d 20 (1965). Also, the public interest condition and the necessity condition "are generally subsumed under the definition of `necessity'." City of Seattle v. Mall, Inc., 104 Wash.2d 621, 623, 707 P.2d 1348 (1985). The interrelatedness of the conditions is particularly apparent where water rights or rights of way to transport water are concerned. This is because of the adoption of the prior appropriation doctrine in this state for acquisition of new water rights; condemnation of rights of way to transport water is an integral component of application of water to beneficial use.

Accordingly, we begin by discussing the public use condition as a predicate to discussion of the necessity condition.

Our analysis begins with article I, section 16 of the Washington State Constitution, which provides:

Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made....2

As an initial matter, this constitutional provision does not require that condemnation for rights of way to transport water is subject to the same criteria as condemnation for private ways of necessity. The first sentence of article I, section 16 carves out two forms that a condemnation for "private" use may take. The constitution states the exceptions to the rule that private property may not be taken for private uses as: "except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes ." Const. art. I, § 16 (emphasis added).

This distinction was carried out in enabling legislation. In 1913, Rem.Rev.Stat. § 936-7 (RCW 8.24.010) was enacted to replace certain earlier enabling statutes. It provides for condemnation of "lands of [another] sufficient in area for the construction and maintenance of such private way of necessity, or for the construction and maintenance of such drain, flume or ditch, as the case may be." RCW 8.24.010. The title of the 1913 act containing RCW 8.24.010, like the constitutional provision, also sets forth the two types of condemnation authorized for private uses: "AN ACT relating to the taking of private property for private ways of necessity and for drains, flumes and ditches on or across the lands of others for agricultural, domestic or sanitary purposes." Laws of 1913, ch. 133, at 412 (emphasis added).

Thus, neither article I, section 16 nor some of the early enabling legislation mandates treating condemnation for a right of way to transport water the same as a condemnation for a private way of necessity.

Although RCW 8.24.010 was enacted as an enabling provision for article I, section 16, it soon gave way to RCW 90.03.040 where condemnation of water rights or rights of way to transport water are concerned. Rem.Rev. Stat. § 7354 (RCW 90.03.040) was enacted as part of the 1917 water code under which the prior appropriation doctrine became the sole method for acquisition of new water rights. It provides in part that "[t]he beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use."3 RCW 90.03.040.

This statute was needed in order to implement the prior appropriation doctrine. Before adoption of the 1917 water code, two water rights doctrines applied in Washington. Under the doctrine of...

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