State v. Superior Court of Lewis County
| Decision Date | 09 January 1925 |
| Docket Number | 18848. |
| Citation | 232 P. 282,132 Wash. 411 |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. COLYN et al. v. SUPERIOR COURT OF LEWIS COUNTY |
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.
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. The right over a private way of necessity is restricted, but there is no reason why it should not be subject to the right to condemn a joint use under reasonable terms and conditions for the maintenance and improvement of the road. We have heretofore held that, since the statute does not in express terms specify the nature and extent of the rights that may be condemned, it is not necessary for a city in securing a right of way for an electric power line to condemn the entire fee but may condemn an easement which reasonably...
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Tomten v. Thomas
...148 Wash. 680, 270 P. 104; State ex rel. White Pine Sash Co. v. Superior Court, 143 Wash. 687, 255 P. 1025; State ex rel. Colyn v. Superior Court, 132 Wash. 411, 232 P. 282; Meyer v. Colorado Central Coal Co., 39 Wyo. 355, 271 P. 212, 274 P. Under this provision and the statutes enacted to ......
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...full use of the existing road by the condemnees." Brown, 97 Wash.2d at 368, 644 P.2d 1153, (citing State ex rel. Colyn v. Superior Court, 132 Wash. 411, 412-13, 232 P. 282 (1925)). The Brown Court further stated [T]he statute which gives a landlocked owner a way of necessity over lands of a......
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... ... 927; United States v. Welch, ... 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., ... 385, 19 Ann.Cas. 680; Swann v. Washington Southern ... Railway Co., 108 Va. 282, 61 S.E. 750; Davis v ... Board of Education, 166 Md. 118, 170 A. 590; 2 Lewis, ... Eminent Domain, 3rd Ed., 743, § 412; 20 C.J. 593 ... [11 ... Wn.2d 556] The state's grant for a period of ten years to ... relator of right of way over Section 16 for a logging road is ... an easement and is 'land' so that the power to ... condemn ... ...
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Shields v. Garrison, 22066-1-II
... ... No. 22066-1-II ... Court of Appeals of Washington, ... Division 2 ... June 12, ... County property, for which she sought a private way of necessity ... See State ex rel. Colyn v. Superior Court, 132 Wash. 411, 232 P. 282 ... ...