State v. Gilliam

• Citation: 300 P. 173,163 Wash. 111
• Decision Date: 12 June 1931
• Docket Number: 23145.
• Parties: STATE ex rel. ERCHINGER v. GILLIAM, Superior Judge, et al.
• Court: United States State Supreme Court of Washington

300 P. 173

163 Wash. 111

STATE ex rel. ERCHINGER v. GILLIAM, Superior Judge, et al.

No. 23145.

Supreme Court of Washington

June 12, 1931

Department 1.

Certiorari by the State, on the relation of R. C. Erchinger, against Mitchell Gilliam, Judge of the Superior Court of King County and others, to review judgment dismissing action by the relator against R. E. Huckins and wife, instituted for purpose of acquiring private way of necessity by condemnation.

Judgment dismissing action affirmed.

Lundin Barto & Devin, of Seattle, for relator.

Meier &amp Meagher, of Seattle, for respondents.

MAIN J.

This action was brought for the purpose of acquiring by condemnation a private way of necessity. At the opening of the trial, the parties stipulated that, instead of having commissioners appointed to view the premises for the purpose of determining whether there was a necessity for the establishment of the right of way, as provided in section 6752, Rem. Comp. Stat., the court should make the view. At the conclusion of the trial, and before rendering a decision the trial court viewed the premises, and thereafter found that no reasonable necessity existed for a private way of necessity. For the purpose of reviewing the judgment dismissing the action, the case is brought here by cartiorari by the relator, who will be referred to as the appellant.

The facts are these: The respondents R. E. Huckins and wife, who will be hereinafter referred to as though they were the only respondents, are the owners of lot 7, block 1, in Yesler &amp McGilvra's addition in the city of Seattle, and also the owners of lot 6, block 42, Lake Washington Shorelands, which latter lot is immediately east of the former. The appellant is the owner of lot 5, in block 42, Lake Washington Shorelands, which is immediately north of the shoreland lot owned by the respondents. Lot 8 in Yesler & McGilvra's addition, immediately west of the shoreland lot owned by the appellant, is owned by Edna Roon. The two lots of the respondents are bounded on the south by East Olive street. The lot owned by Miss Roon and lot 7 owned by the respondents are bounded on the west by an improved street. The two shoreland lots, one owned by the respondents and the other by the appellant, are bounded on the east by Lake Washington. Some years ago the parties to this action constructed, at or near the boundary between their two shoreland lots, a wharf or dock for their joint use. Along the south side of the lot owned by Miss Roon, extending in an easterly direction from the street on the west to the southwest corner of lot 5, the appellants have a four-foot right of way, conveyed to them by Miss Roon. At or near the boundary line between lots 7 and 8, the upland lots, and lots 5 and 6, the shoreland lots, there is an embankment which rises abruptly something like twenty-five or thirty feet. Near the northwest corner of the shoreland lot owned by the respondents they have constructed their dwelling house, and immediately to the rear thereof a garage. From East Olive street, across the east end of lot 7, there is a driveway to the garage. By this action the appellant seeks to acquire the right to use this driveway, which would necessitate the moving of the garage. The appellant has no outlet to the north, and, as the evidence shows, it would be impractical to construct a roadway for vehicular traffic up the embankment and across Miss Roon's lot to the street on the west. The evidence also shows that, if the garage were moved, it would be necessary to set it into the hill and thus remove the toe of the slope, which would render a slide more probable. There is evidence which tends to show that the highest and best use to which the lots of the respondent could be put would be...