State v. Superior Court of Lewis County

• Decision Date: 09 January 1925
• Docket Number: 18848.
• Citation: State v. Superior Court of Lewis County, 232 P. 282, 132 Wash. 411 (Wash. 1925)
• Court: Washington Supreme Court
• Parties: STATE ex rel. COLYN et al. v. SUPERIOR COURT OF LEWIS COUNTY

232 P. 282

132 Wash. 411

STATE ex rel. COLYN et al. v. SUPERIOR COURT OF LEWIS COUNTY

No. 18848.

Supreme Court of Washington

January 9, 1925

Department 1.

Certiorari by the State of Washington, on the relation of L. G. Colyn and others, to review decision of the Superior Court of Lewis County, refusing to enter an order of necessity in condemnation proceedings.Decision of Superior Court reversed, and case remanded, with directions.

Forney & Ponder, of Chehalis, for petitioners.

Gus.L Thacker, of Chehalis, for respondent.

PEMBERTON J.

Petitioners instituted this action for the condemnation of a private way of necessity.Upon a preliminary hearing the trial court refused to enter an order of necessity, and upon the return to a writ of certiorari the decision of the trial court is here for review.

The private way of necessity desired is a small strip of land across a portion of a 40-acre tract, and is now used by respondents as a private road leading from the main traveled county road and giving access to the lands of petitioners and respondents.This road is fenced and graded and crosses a river over a bridge.The trial court stated in his opinion in part as follows:

'I am of the opinion however that, without an act of the Legislature, a private way of necessity cannot be condemned over an existing private way devoted to the same purpose and a partnership forced upon defendants in this matter.'

The objection is made by respondents that the proportion of the maintenance and improvement of the roadway to be borne by petitioners is not determined.The trial court should determine all the conditions and terms of maintenance and improvement required of both petitioners and respondents.

The use of a private way of necessity differs from a public road only in the extent of the use.The right over a public road is in the nature of an easement, and is enjoyed by all....