State v. Superior Court for King County

• Decision Date: 13 October 1927
• Docket Number: 20725.
• Citation: 145 Wash. 307,260 P. 527
• Court: Washington Supreme Court
• Parties: STATE ex rel. HUNTOON v. SUPERIOR COURT FOR KING COUNTY et al.

260 P. 527

145 Wash. 307

STATE ex rel. HUNTOON v. SUPERIOR COURT FOR KING COUNTY et al.

No. 20725.

Supreme Court of Washington

October 13, 1927

Certiorari by the State, on the relation of Clara E. Huntoon, to review a decree of the Superior Court for King County, Austin E Griffiths, Judge, awarding to George H. Boucher and another right to acquire by condemnation a way of necessity over relator's land. Decree affirmed.

Jos. M. Glasgow, of Seattle, for relator.

John P Gallagher and C. C. Curtis, both of Seattle, for respondents.

PARKER J.

This is a certiorari proceeding in this court, wherein the relator Mrs. Huntoon, seeks review and reversal of a decree of the superior court for King county adjudicating and awarding to George H. Boucher and Clayton N. Boswell the right to acquire, by condemnation, a private way of necessity over land of Mrs. Huntoon for ingress and egress between their land and a public highway.

In June, 1908, Boucher acquired title to the 20-acre tract described as the north half of the northwest quarter of the southwest quarter of section 19, township 26 north, range 4 east, lying a short distance north of the present northerly city limits of Seattle. On June 27, 1926, Boucher entered into a contract with Boswell for the sale to him of the 'north 300 feet of the east 200 feet' of that tract for an agreed purchase price of $3,000; Boswell being given the right of beneficial use thereof pending the payment of the agreed purchase price. At the time of entering into this contract and since then, Boucher has continued to own at least a large portion of the 20-acre tract acquired by him in June, 1908, which land at all times in question has been immediately contiguous to public highways; one adjoining it upon the west and others being within a considerable portion of the 20-acre tract platted into lots and public streets in the plat known as 'Bitter Lake Villa Tracts.' A large portion of the 20-acre tract is permanently covered by the waters of Bitter Lake, which is about one-quarter of a mile long, measured northwest and southeast, and is of an average width of about one-eighth of a mile, measured from southwest to northeast. The lake extends clear across the 20-acre tract, so that the larger portion of the upland lies to the southwest of the lake, while a portion of the tract contracted to be sold to Boswell is upland lying to the northeast of the lake; these respective portions being physically separated by the lake. The only present way of lawful ingress or egress to or from that portion of the 20-acre tract lying to the northeast of the lake is over the waters of the lake to the west, since neither Boucher nor Boswell owns any land bordering on that land, and there is no highway abutting thereon. Boswell has entered into a contract with the Marine National Bank for the purchase from it of lots 4 and 5, block 5, of the plat of Allendale, for an agreed purchase price of $1,400; Boswell being given the beneficial use thereof pending the payment of the purchase price. These lots are bounded on the north by an established public highway known as Allen boulevard. Their south boundary is on the same east and west line projected as the north boundary of the Boucher tract, and the northeast corner of that tract is 100 feet west of the southwest corner of lot 5. Mrs. Huntoon owns some 16 acres of land bounded on the north by the line running east from the northwest corner of the Boucher tract and on the west by the line running south from the northwest corner of the Boucher tract.

Boucher and Boswell commenced this eminent domain proceeding, seeking a way of necessity over a strip of land in the northwest corner of Mrs. Huntoon's land, 10 feet by 115 feet, extending east from the northeast corner of the Boucher tract to a point 10 feet east of the southwest corner of lot 5, owned by the Marine National Bank and contracted to be sold to Boswell. The trial court rendered a decree of necessity, awarding to Boucher and Boswell the right to acquire by condemnation the right of way sought as a way of necessity, conditioned that they cause to be granted an easement to the public over the west 10 feet of lot 5 as a public highway, and thus make the way sought to be acquired over Mrs. Huntoon's land connect with the public highway, Allen boulevard. The annexed plat will render the geography of the situation more readily understandable.

(Image Omitted) This condemnation proceeding manifestly is prosecuted under chapter 133, Laws of 1913 (sections 6747-6749, Rem. Comp. Stat.). In view of the interpretation of this act for which counsel for Mrs. Huntoon contends, let us notice the whole of the language of its title and its first section; the other sections having to do only with procedure:

'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.

'Be it enacted by the Legislature of the state of Washington:

'Section 1. An owner, or one entitled to the beneficial use, of land which is so situate with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity or to construct and maintain any drain, flume or ditch, on, across over or through the land of such other, for agricultural, domestic or sanitary purposes, may condemn and take lands of such other sufficient in area for the construction and maintenance of such private way of necessity, or for the construction and maintenance of such

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