SENATE BILL REPORT

SB 6453

BYSenators Barr and Hansen

Amending provisions for private ways of necessity, adverse possession, and prescriptive easements.

Senate Committee on Agriculture

Senate Hearing Date(s):February 4, 1988; February 5, 1988

Majority Report:  That Substitute Senate Bill No. 6453 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Barr, Chairman; Anderson, Vice Chairman; Bailey, Halsan, Hansen, Rinehart.

Senate Staff:Tom McDonald (786-7404)

                  February 5, 1988

AS REPORTED BY COMMITTEE ON AGRICULTURE, FEBRUARY 5, 1988

BACKGROUND:

An easement is a liberty or privilege one has to use the land of another.  Easements may be created by express grant, by necessity, by implication or by prescription.

Under a statutory condemnation proceeding, a court may grant a landowner a "necessary" easement across the land of another if the easement is necessary to allow the landowner proper use and enjoyment of his or her land.  The courts have not required proof of absolute necessity but rather that the passage is the most reasonable means of access.  If the easement is granted through a condemnation proceeding, compensation is to be paid to the owner of the land wherein the easement is situated.

A "prescriptive" easement may be obtained without the consent of the owner of land where the easement is situated and without compensation being paid to the owner.  To establish a prescriptive easement, the person claiming the easement has the burden to prove that for the past ten years his or her use of another's land has been:  (1) adverse to the rights of the true owner; (2) open, notorious, continuous and uninterrupted; and, (3) with the true owner's knowledge of such use.  An owner is usually presumed to have knowledge of such use if the elements in numbers (1) and (2) are proved.

SUMMARY:

Under a condemnation action for a private way of necessity, the term "necessary" is specifically defined as "absolute necessity and not relative or reasonable necessity or convenience."  If there is more than one possible route, the court must first consider placing the easement through public lands; second, through nonagricultural land; and third, through the least productive land if the only option is to use agriculture land.  The court is to weigh the benefits and burdens of the different possible routes and establish an equitable balance between the benefits and burdens of an easement.  The owner of the land wherein the easement is located shall be reimbursed by the party requesting the easement for reasonable attorney's fees and expert witness costs.

A person seeking to establish an easement by prescription or acquire title by adverse possession must prove the additional element of "necessity" as defined for private condemnation actions.

EFFECT OF PROPOSED SUBSTITUTE:

The specific definition of "necessary" and the consideration of priorities in selecting the location of a necessary easement are stricken.  The owner of land who has a prescriptive easement granted across his or her land may receive compensation for the fair market value of that easement.  Prevailing parties in litigation to establish or defend against claims for easements by prescription or adverse possession are entitled to reasonable attorney fees and expert witness costs to be paid by the nonprevailing parties.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Don Fancher, Washington Cattlemen's Association (for); Ray Nelson