H-3582              _______________________________________________

                                                   HOUSE BILL NO. 1416

                        _______________________________________________

State of Washington                              50th Legislature                              1988 Regular Session

By Representatives McLean, Haugen, Rayburn, Ballard, Betrozoff, D. Sommers, Sanders, Nealey and Ferguson

Read first time 1/15/88 and referred to Committee on Judiciary. Referred to Committee on Agriculture & Rural Development 1/20/88.

AN ACT Relating to private ways of necessity; amending RCW 8.24.010 and 8.24.030; and adding new sections to chapter 8.24 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

        Sec. 1.  Section 1, chapter 133, Laws of 1913 and RCW 8.24.010 are each amended to read as follows:

          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 drain, flume or ditch, as the case may be.  The term "private way of necessity," as used in this chapter, shall mean and include a right of way on, across, over or through the land of another for means of ingress and egress, and the construction and maintenance thereon of roads, logging roads, flumes, canals, ditches, tunnels, tramways and other structures upon, over and through which timber, stone, minerals or other valuable materials and products may be transported and carried.

"Necessity" and "necessary," as used in this chapter, mean absolute necessity and not relative necessity or convenience.  This definition is specifically in derogation of the common law.

NEW SECTION. Sec. 2.  A new section is added to chapter 8.24 RCW to read as follows:

          If it is determined that an owner, or one entitled to the beneficial use of land, is entitled to a private way of necessity under this chapter, the owners of all land surrounding and contiguous to the property for which the private way of necessity is being sought may be joined as parties.

NEW SECTION. Sec. 3.  A new section is added to chapter 8.24 RCW to read as follows:

          If it is determined that an owner, or one entitled to the beneficial use of land, is entitled to a private way of necessity and it is determined that there is more than one possible route for the private way of necessity, the selection of the route shall be guided by the following priorities in the following order:

          (1) Public lands shall be used if possible.

          (2) Nonagricultural land shall be used if possible.

          (3) The least-productive land shall be used if it is necessary to cross agricultural land.

          (4) The relative benefits and burdens of the various possible routes shall be weighed to establish an equitable balance between the benefits to the land for which the private way of necessity is sought and the burdens to the land over which the private way of necessity is to run.

        Sec. 4.  Section 2, chapter 133, Laws of 1913 and RCW 8.24.030 are each amended to read as follows:

          The procedure for the condemnation of land for a private way of necessity or for drains, flumes or ditches under the provisions of this chapter shall be the same as that provided for the condemnation of private property by railroad companies, but no private property shall be taken or damaged until the compensation to be made therefor shall have been ascertained and paid as provided in the case of condemnation by railroad companies.

The owners of land over which a private way of necessity is sought shall be reimbursed by the condemnor for their reasonable attorneys' fees and expert witness costs.