Long v. Billings

• Decision Date: 15 November 1893
• Citation: 7 Wash. 267,34 P. 936
• Parties: LONG v. BILLINGS ET AL.
• Court: Washington Supreme Court

34 P. 936

7 Wash. 267

LONG v. BILLINGS ET AL.

Supreme Court of Washington

November 15, 1893

Appeal from superior court, Thurston county; Mason Irwin, Judge.

Proceeding by J. T. Long against C. A. Billings and others to appropriate a private way of necessity. From a judgment of dismissal, plaintiff appeals. Affirmed.

Geo. W. Tyler, for appellant.

Skillman & Agnew and Robinson & Linn, for respondents.

STILES J.

An application to a court for the designation of a way of necessity as a common-law right would be an equitable proceeding, and on an appeal in such a case taken in April 1893, the entire record must have been brought up, as in other equity cases. But the matter before us is not such an application, but rather a special proceeding to appropriate a "private way of necessity," as the term is used in the constitution. In other words, it is a condemnation proceeding. In such cases, no more of the record need be brought up than in ordinary civil actions. Code Proc. § 1423.

In this case, there was no necessity for a bill of exceptions to be settled and signed. The only error assigned was upon the judgment of dismissal. The decision of the superior court was substantially the sustaining of a demurrer to the complaint which was made apparent upon the record, and no exception was necessary. Id. § 398. Moreover, an exception was noted and signed by the judge, being made a part of the order of dismissal. The respondents' motion to dismiss must therefore be denied.

Appellant procured a lease of 5 acres of land to be used as a stone quarry. This land lay along the south side of a 60-acre tract of land belonging to a third party, through which ran the track of the Northern Pacific Railroad Company, several hundred feet away. Appellant alleged that after he received his lease he entered into negotiations with the owner of this latter tract for a way over it to the railroad track, and had been orally promised a right of way, when the respondents, one of whom was his lessor, interfered, and purchased the entire 60-acre tract, and refused him a crossing upon any terms. The allegations show the practical necessity for a way across the particular tract of land. The right to a way of necessity arose at common law when the owner sold land to another, which was cut off from necessary access to a highway by other land at the time owned by the grantor. In such a case the purchaser's right was to have a way...