Kennedy v. Martin

63 P.3d 866, 115 Wash. App. 866
CourtCourt of Appeals of Washington
DecidedFebruary 25, 2003
DocketNo. 27922-3-II
StatusPublished
Cited by13 cases

This text of 63 P.3d 866 (Kennedy v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy v. Martin, 63 P.3d 866, 115 Wash. App. 866 (Wash. Ct. App. 2003).

Opinion

Quinn-Brintnall, A.C.J. —

Stephen Kennedy sought an easement of necessity across Tom and Sharon Martin’s property. The Martins joined Joseph and Kaylee Cammack, adjacent landowners, claiming that the easement should be placed across their property. The trial court granted Kennedy an easement over the Martins’ property and [868]*868ordered the Martins to pay the Cammacks’ attorney fees. The Martins appeal only the attorney fee award. We affirm.

FACTS

In 1969, Kennedy’s parents divided property in Clallam County into two separate parcels. That same year, they sold the western parcel to the Martins, leaving the eastern parcel landlocked. The Cammacks own the land adjacent and due south to both the Kennedy and Martin parcels. In 1975, Kennedy acquired the landlocked eastern parcel from his mother by gift. Kennedy brought an action for a private way of necessity to establish an easement over the Martins’ property. In March 2000, the Martins added the Cam-macks as third party defendants. Kennedy opposed the Cammacks’ joinder, and argued that the only reasonable route for the easement was over the Martins’ property. The trial court awarded Kennedy an easement over the Martins’ property.

The trial court denied the Cammacks’ motion for attorney fees against Kennedy. But it granted the Cammacks’ request for attorney fees against the Martins. The Martins appeal only the attorney fees order, claiming that potential condemnees are not entitled to recover their attorney fees under RCW 8.24.030.

ANALYSIS

The doctrine of easement by necessity is based on the policy that landlocked land may not be rendered useless and the landlocked landowner is entitled to the beneficial uses of the land. Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 666-67, 404 P.2d 770 (1965). The landlocked landowner is given the right to condemn a private way of necessity to allow ingress and egress onto the land. Hellberg, 66 Wn.2d at 666-67; RCW 8.24.010. The only requirement is that the owner demonstrate a reasonable need for the easement for the use and enjoyment of his or her property. Wagle v. [869]*869Williamson, 51 Wn. App. 312, 314, 754 P.2d 684 (1988), appeal after remand, 61 Wn. App. 474, 810 P.2d 1372 (1991).

Necessity of Joining Cammack as a Third Party Defendant

Historically, to defeat an easement route selected by the condemnor, the condemnee was required to show that there is a practical or more feasible route already available to the condemnor and that the condemnor selected the easement route based on bad faith, oppression, or abuse. Sorenson v. Czinger, 70 Wn. App. 270, 276 n.2, 852 P.2d 1124 (citing State ex rel. Stephens v. Superior Court, 111 Wash. 205, 207-09, 190 P. 234 (1920)), review denied, 122 Wn.2d 1026 (1993), on subsequent appeal, 96 Wn. App. 1013 (1999). A court will not “interfere with [the condemnor’s] selection” of an easement route absent bad faith. State ex rel. Wheeler v. Superior Court, 154 Wash. 117, 118, 281 P. 7 (1929).

RCW 8.24.025 eliminated the bad faith requirement and, instead, required that the chosen route be more equitable than the alternative. Sorensen, 70 Wn. App. at 276 n.2. Specifically, the statute requires that:

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) Nonagricultural and nonsilvicultural land shall be used if possible.
(2) The least-productive land shall be used if it is necessary to cross agricultural land.
(3) 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.

RCW 8.24.025.

Under this statute, the condemnor has the burden to show that a private way of necessity exists and that the [870]*870route selected is the most reasonable alternative. Soren-son, 70 Wn. App. at 276. Once necessity is established, the potential condemnee may demonstrate the existence of a feasible alternative. Sorenson, 70 Wn. App. at 276 n.2. The burden then shifts to the condemnor to show that the chosen route is more equitable. Sorenson, 70 Wn. App. at 276 n.2 (citing Wagle, 61 Wn. App. at 481). The trial court must give the opinion of the potential condemnee considerable weight, striking an equitable balance between the selected route and any alternative route and weighing the benefits and burdens of each. Wagle, 61 Wn. App. at 480-81. Sufficient evidence must support a trial court’s finding that a proposed alternative is impractical. Sorenson, 70 Wn. App. at 276. Failure to join an owner of the parcel upon which a proposed alternate route will run does not preclude consideration of the alternative route. Sorenson, 70 Wn. App. at 276.

But Sorenson also indicated that if the selection of the alternative route requires the joinder of nonparties, that can be evidence of necessity. Sorenson, 70 Wn. App. at 276. Specifically, in Sorenson, the court stated that:

Nevertheless, evidence showing an alternative route would require the condemnation of property whose owners were not parties to the proceeding was held sufficient to show the necessity for the route selected by condemnor in Wheeler, 154 Wash. 117]; see [Stephens, 111 Wash. at 209] (questioning whether an alternative route over the property of nonparties could be considered by the court).

Sorenson, 70 Wn. App. at 276.

Here, the Martins argue that Sorenson required them to join the Cammacks. They assert that condemnees are in a precarious position because the failure to join a third party who owns an alternative route establishes that the condem-nor’s selected easement route meets the necessity requirement. Thus, the Martins concluded that they had no choice: in order to assert that an alternative route existed, they had to join the Cammacks. We disagree.

[871]*871The Sorenson court relied on Stephens and Wheeler for its claim that a party need join the owner of an alternate route to establish necessity. Sorenson, 70 Wn. App. at 276.

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Kennedy v. Martin
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Bluebook (online)
63 P.3d 866, 115 Wash. App. 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-martin-washctapp-2003.