HOUSE BILL REPORT

HB 1416

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

Revising provisions relating to private ways of necessity.

House Committe on Agriculture & Rural Development

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (10)

      Signed by Representatives Rayburn, Chair; Baugher, Bristow, Brooks, Chandler, Holm, McLean, Moyer, Nealey and Rasmussen.

Minority Report:  Do not pass.  (1)

      Signed by Representative R. King.

House Staff:Kenneth Hirst (786-7105)

AS REPORTED BY COMMITTEE ON AGRICULTURE & RURAL DEVELOPMENT

FEBRUARY 4, 1988

BACKGROUND:

The state's Constitution prohibits private property from being taken for private use.  An exemption from this prohibition is provided for private ways of necessity. The conditions under which property may be condemned for a private way of necessity are provided by the Legislature and the courts.

State statutes require that the land be situated such that it is necessary for its proper use and enjoyment to have a private way of necessity over or through the lands of another.  The owner or beneficial user of land situated in this manner may condemn land sufficient in area for the construction and maintenance of the way of necessity.

The courts have determined that the right of an owner or beneficial user of landlocked property to condemn the land of another for ingress and egress is the right to a "way" in its ordinary sense, a mere right of passage over land.  They have also determined that the necessity for a private way need not be absolute but must be reasonably necessary as distinguished from merely convenient or advantageous.  The way of necessity must be for a private, not a public, use.

SUMMARY:

SUBSTITUTE BILL:  The statutes governing private ways of necessity are amended.  The necessity for such a private way must be an absolute necessity and not a relative necessity or convenience.

The owner of any land contiguous to the property for which a way of necessity is sought may be joined as a party in the condemnation proceeding for the way of necessity if the property might contain a site for the private way.  If it is determined that there is more than one possible route for the private way, the selection of the route is guided by the following order of priorities:  nonagricultural land must be used, if possible; if agricultural land must be used, the least productive must be used; and the relative benefits and burdens of the various possible routes must be weighed.

The owner of land over which a private way of necessity is sought and the owners of contiguous lands joined in the condemnation proceeding must be reimbursed by the condemnor for their reasonable attorneys' fees and expert witness costs.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  Striken from the original bill by the substitute is a provision requiring the private way to be sited on public lands if possible.  The provisions of the bill permitting other property owners to be joined in the condemnation proceeding are altered by the substitute as are the provisions concerning reimbursement for attorney's fees and witness costs.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    Representative McLean; Marlyta Deck, Washington Cattlemen's Association; and Bill Roberts, State Farm Bureau.

House Committee - Testified Against:      None Presented.

House Committee - Testimony For:    (1) The current law permits an owner of property to condemn the private lands of a neighbor even if that owner has an access corridor to the land but it would be more difficult to build a driveway or road on that corridor.  The need should be an absolute need.  (2) Currently, the person condemning the land can choose the access route.  Recently, such a person successfully condemned land through the middle of a neighbor's orchard.  The bill will protect agricultural land.

House Committee - Testimony Against:      None Presented.