Hallauer v. Spectrum Properties, Inc.

143 Wash. 2d 126
CourtWashington Supreme Court
DecidedFebruary 22, 2001
DocketNo. 68554-1
StatusPublished
Cited by61 cases

This text of 143 Wash. 2d 126 (Hallauer v. Spectrum Properties, Inc.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hallauer v. Spectrum Properties, Inc., 143 Wash. 2d 126 (Wash. 2001).

Opinions

Madsen, J.

Wilbur G. and Josephine Hallauer, who hold a certificated water right to water from a spring on neighboring land, seek to condemn a way across that land for transporting water to their property for domestic use and to ponds for fish propagation. The Court of Appeals held that because the Hallauers’ property is not landlocked and alternative sources of water are available, the Hallauers failed to prove a reasonable necessity for condemnation. We reverse the Court of Appeals and hold that the Hallauers are entitled to proceed with their condemnation action.

FACTS

The Hallauers and respondents Ernesto C. and Made[130]*130liene B. Del Rosario own adjacent property on the shore of Lake Osoyoos in Okanogan County. Donald Thorndike was the Del Rosarios’ predecessor in interest. In the mid-1970’s, part of a bluff on Thorndike’s property collapsed, revealing a natural spring. In the early 1980’s the Hallauers built a home on their property with a heat pump and cooling system that used water from a well. The first winter, the heat pump froze because the water from the well was too cold for its proper operation. Mr. Hallauer learned that the water from the spring on Mr. Thorndike’s property would be satisfactory for operation of the heat pump as well as for supplying water to ponds intended for fish propagation.

Mr. Thorndike and Mr. Hallauer agreed that Mr. Hallauer would apply to the Department of Ecology for a water right entitling him to withdraw water from the spring on the Thorndike property, and when the water right was granted Mr. Hallauer would pay Mr. Thorndike $500.1 In March 1982, Mr. Thorndike signed the application for the water right as owner of the property, and Mr. Hallauer signed as the applicant. In March 1984, Mr. Hallauer sent a letter to Mr. Thorndike saying the application had been approved and enclosed a check for $500.

Mr. Hallauer developed the spring and installed a pipeline to transport water from the spring to his property for the heat pump and fish ponds. The property on which the ponds are located was developed into the Champerty Shores development, a private community. In 1984, fish were added to the ponds. In October 1984, the Department of Ecology issued a certificate of water right.

Mr. Thorndike’s property was acquired by Spectrum Properties, Inc., following foreclosure proceedings. In October 1989, Mr. Del Rosario entered into a real estate contract for the purchase of the property, took possession, and began managing an apple orchard on it. During roadwork on the property, the Hallauers’ pipeline was discovered, and the [131]*131Del Rosarios demanded that the pipeline be removed.

Litigation ensued. Although the Hallauers originally obtained a judgment quieting title to a prescriptive easement across the Del Rosarios’ property, that decision was reversed on appeal. On remand, the Hallauers sought, among other things, to condemn an easement for a pipeline to carry water from the spring to their property. Petitioner Champerty Shores Owners Association was added as a necessary party plaintiff because it had taken ownership of the fish ponds and an interest in the spring right. The trial court held that the Hallauers had failed to show a reasonable necessity for a private condemnation. On appeal, the Court of Appeals affirmed. This court granted discretionary review.

ANALYSIS

Although several other grounds for relief have been argued during litigation between the parties, the only matter before this court is whether the Hallauers are entitled to condemn an easement across the Del Rosarios’ property for a pipeline to transport water from the spring to their property for use in the heat pump and cooling system and as a water supply for propagation of fish.

The authority to condemn a right of way to transport water has long existed in this state, both by constitutional and statutory provisions. The chief question posed by this case is whether the showing of necessity to condemn a right of way to transport water is identical to the showing required to condemn a private way of necessity. The Court of Appeals, relying on RCW 8.24.010, held that “necessity” means the same in both contexts. We disagree because RCW 8.24.010 does not apply in the context here.

As we explain below, RCW 90.03.040 provides the statutory authority for condemnation in this case. Among other things, the statute directs that “property or rights shall be acquired [through condemnation] in the manner provided by law for the taking of private property for public use by [132]*132private corporations.” RCW 90.03.040. Therefore, chapter 8.20 RCW (eminent domain by corporations), rather than chapter 8.24 RCW, provides the procedures for condemnation. RCW 8.20.070 states that at the hearing on a petition to condemn where the contemplated use is a public use, the court will enter an order of public use and necessity if it is “satisfied by competent proof that the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use . . . that the public interest requires the prosecution of such enterprise . . . and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise.”

In order to determine whether the Hallauers are entitled to an order of public use and necessity, we examine both public use and necessity, as the three conditions set out in RCW 8.20.070 are interrelated. See State v. Belmont Improvement Co., 80 Wn.2d 438, 442-43, 495 P.2d 635 (1972); State v. Dawes, 66 Wn.2d 578, 583, 404 P.2d 20 (1965). Also, the public interest condition and the necessity condition “are generally subsumed under the definition of‘necessity’.” City of Seattle v. Mall, Inc., 104 Wn.2d 621, 623, 707 P.2d 1348 (1985). The interrelatedness of the conditions is particularly apparent where water rights or rights of way to transport water are concerned. This is because of the adoption of the prior appropriation doctrine in this state for acquisition of new water rights; condemnation of rights of way to transport water is an integral component of application of water to beneficial use.

Accordingly, we begin by discussing the public use condition as a predicate to discussion of the necessity condition.

Our analysis begins with article I, section 16 of the Washington State Constitution, which provides:

Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes.

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Bluebook (online)
143 Wash. 2d 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hallauer-v-spectrum-properties-inc-wash-2001.