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Landowners May Condemn Private Easement After Voluntarily Landlocking Their Property

In a case of first impression in Washington State, Division I of the Washington Court of Appeals ruled on January 31, 2011 in Ruvalcaba v. Kwang Ho Baek, Division One, No. 63572-2-1, that landowners may condemn a private way of necessity under RCW 8.24.010 after voluntarily landlocking their property.  In that case, the Ruvalcabas had divided their land in 1971 and sold the eastern parcel which bordered a public street 42nd Avenue NE, thus landlocking the remaining parcel.  The Ruvalcabas then brought an action to condemn a private way of necessity against other neighbors to the north to gain access to NE 135th Street.

RCW 8.24.010 has long allowed landowners a remedy to condemn a private “way of necessity” to allow access to parcels if, “necessary for its proper use and enjoyment”.   This remedy supports the strong public policy of allowing land to be used and enjoyed.   But how “necessary” would an access route be if the very people seeking the assistance of the court in condemning the access route had sold a portion of their property which had previously bordered a public street, thus causing the need for access over another party’s property?   The neighboring property owner, over whose property the condemnor sought to acquire an access easement by condemnation, argued that the Washington statute shouldn’t be construed to reward a property owner who put himself in the situation which now needs to be remedied by awarding the owner the access easement. 

The Court of Appeals read the statute as requiring that the condemning landowner having “clean hands”.  The Court ruled that the property owner’s actions should be a factor to consider in determining if it were “necessary” to provide access through a private condemnation.  The Court considered the time which has passed since the land was originally landlocked, in 1971, and the time the condemnation action was filed in 2008, and the potential dramatic change in Seattle property values, making the landlocked parcel much more valuable.  The Court considered the possible topographic challenges to access over the severed parcel, making it impractical to have retained an easement over the severed parcel to the east when it was sold in 1971.   The Court of Appeals indicated that the determination of the “necessity” was a factual determination, which the trial court should make.  However the petitioner’s severing of the part of the land which bordered the public access is not, by itself, a bar to the right to a way of necessity under RCW 84.24.010, which makes sense, notwithstanding that it sounds, at first blush, to be unreasonable.

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