State v. Superior Court for Kitsap County

• Decision Date: 28 May 1919
• Docket Number: 15254.
• Citation: 181 P. 689,107 Wash. 228
• Parties: STATE ex rel. CARLSON et al. v. SUPERIOR COURT FOR KITSAP COUNTY.
• Court: Washington Supreme Court

181 P. 689

107 Wash. 228

STATE ex rel. CARLSON et al. v. SUPERIOR COURT FOR KITSAP COUNTY.

No. 15254.

Supreme Court of Washington

May 28, 1919

Department 2.

Original proceeding by the State of Washington, on the relation of John P. Carlson and others, against the Superior Court of the State of Washington for Kitsap County; Hon. Walter M. French Judge thereof. Reversed.

Jas. W Bryan, of Seattle, for respondent.

CHADWICK, C.J.

C. H Davis, whom we shall refer to as the petitioner, brought a proceeding in the court below to condemn a private way of necessity over and across the lands of the relators. Some seven years ago Davis bought a tract of ten acres from his father, D. J. Davis. The tract was landlocked. A county road ran along the north boundary of the D. J. Davis land and along the west boundary of the land of the relators. Petitioner has improved his land, and for the seven years of his ownership has maintained a way over the lands of his father. Conceiving the way over his father's land to be less convenient and less practicable, as it is a little longer and more circuitous than a way over relators' land would be, petitioner brought a proceeding to condemn a private way of necessity along the north line of relators' property. After a full hearing and a view by the court, an order of necessity was made, and the court proceeded forthwith to call a jury and took an assessment of damages.

The testimony is in a sense conflicting, but, when measured by the history of the case and the privileges and demands of the statute, we find no difficulty in reaching a conclusion. We shall refer briefly to the testimony of the witnesses.

D. J Davis, petitioner's grantor, testified that the only feasible or practical way for C. H. Davis to get out from his property to a public road is over the Carlson property; that to go any other way it would cost more to build a road than the Davis tract is worth.

C. H. Davis, the petitioner, testified that there was no other practicable or feasible way for him to get from his land to a public road; that the present trial over his father's tract was during the greater part of the year impassable and could not be made passable; that children could not go to school over it; and that merchants had refused to deliver goods to his family unless a road was established.

Other witnesses testified that the road was impassable for the greater part of the year as it now exists; that the way was over high and difficult hills and low boggy ground. Others testified that there was no reasonable way out of the tract unless it be over the Carlson land.

Relator testified that as good grade could be made across the Davis land as across his land and for an equal amount of money; that he could at a reasonable cost build a good road across the D. J. Davis land at a grade not exceeding 5 per cent. at any place; that it would be necessary to make a steep grade down a hill and a bridge at least 100 feet long to go over his land; that he has cleared and seeded to grass the boggy ground on the north line of his place; that a road over it would have to be filled or planked so as to make a passable roadway in the winter time; that he had worked for a road contractor for several years, and knew the cost of road construction; and that a road could be built as cheaply and conveniently over the one way as the other. He further testified that he had dammed the creek and excavated a large fish pond on the line of the proposed way at a cost of over $300, and that the establishment of a way of necessity would ruin it.

A. P. McDonald testified that he had 18 years' experience in road building, had worked for lumbering companies, laid out roads for them, and knew in a general way all that anybody does in regard to laying out roads. He further testified:

'I was one of the viewers appointed by the court in the first case brought by the plaintiff against the Carlsons, which case was dismissed. I looked over this matter very carefully, and came to the conclusion that I could not determine whether it would be more feasible to build a road across the D. J. Davis land or across the Carlson land. I could not do this unless I made an accurate survey of it, and I was not employed to do that. I came to the conclusion, as best I could without an actual survey, that it was about an even break between the two; that is, one road would be about as good as the other, and would cost about as much. It is not possible for anybody to tell accurately about one of these roads without a survey. There would be some grading to do on both roads. There would be more grading on the Davis land than on the Carlson, but there would not be as many fills or as long a bridge on the Davis land.'

A brother of relator testified that there would be no material difference in cost; that a road over the Davis land would be better because it would not have a steep grade on it; that there would be a very steep grade to go from the petitioner's land to the relators' land; that the grade would land on a bridge; and that a road 15 feet wide could not be built without making a deep cutaway back on the petitioner's land. Mr. Anderson, county assessor, testified that, in order to get off the Davis land on to the Carlson land, a bridge at least 60 feet long would have to be built.

In rebuttal, D. J. Davis testified that, if a road was put over his land, it would require a bridge 40 or 50 feet long.

It is argued that the way over the Davis land is impassable and impractical, and out of these things a necessity arises.

The court found that the establishment of a private way of necessity over relators' land was necessary, and that the petitioner had no means of ingress or egrees from his premises, and that the most practical route for the roadway was over and upon the land of the relators. From these findings the court concluded that there was a necessity for the establishment of a roadway from the lands of the petitioner, and that the most practicable route for said road is along the north line of relators' property.

We are called upon to review the order of necessity.

When D. J. Davis sold a part of his land to the petitioner, an easement or way of necessity was implied in the grant. This was the rule of the common law. It has been followed almost, if not quite, universally in other states, and has never been questioned in this state. Schulenbarger v. Johnstone, 64 Wash. 202, 116 P. 843, 35 L. R. A. (N. S.) 941, and cases there cited. So that the question of law is whether one having a legal right to pass over the lands of his grantor may reject the way that the law gives him and which his grantor cannot deny him, and compel a way of necessity over the lands of a stranger where upon a mere admeasurement of convenience and expense it is held that the way over the land of the stranger is the more practicable than the way over the land of the grantor.

At common law, and with us, there is no such thing as a way of necessity over the lands of a stranger, for a way of necessity arises out of contract and is grounded in the doctrine of estoppel. Schulenbarger v. Johnstone, supra.

So it may be said that, notwithstanding a statute gives a landlocked owner the right to condemn a way of necessity over the lands of a stranger, it is not a favored statute, and the taking will not be tolerated unless the necessity is paramount in the sense that there is no other way out or that the cost is prohibitive, for it must be borne in mind that, after all, this is a condemnation proceeding. We are taking the property of one man and giving it to another. Const. art. 1, § 16. There is a constitutional right involved, and such rights should not be so lightly regarded that they may be swept away to serve convenience and advantage merely. The statute provides:

'An owner * * * of land which is so situate with

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