Private Condemnation: A Remedy For Landlocked Property And Access Problems

Eminent domain, generally speaking, is the power of the government to take private property without the private owner’s consent.  Under the U.S. Constitution, the government exercising this power must compensate the property owner for the fair market value of the property taken.  The U.S. Supreme Court has held that it is not a violation of the U.S. Constitution for the government to take private property and then give it to another private owner.  But under Washington law, the government cannot take private property for non-public use.  Washington’s Constitution, however, does reflect a policy of putting land to beneficial use and not allowing it to become landlocked and thereby unproductive.  Article I, Section 16 of the Washington Constitution states, in relevant part, “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.”  (emphasis added).  The emphasized language opened the door for the legislature to provide for private condemnation of property.  Washington’s private condemnation statute, RCW 8.24, codifies the ability of private landowners to compel access over private land and pay just compensation for the affected property.  RCW 8.24.010 defines “private way of necessity” as including “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.”  Courts have interpreted this language as including the right to run utilities through the private way of necessity.  Notably, there is no requirement of strict necessity; the mere fact that an alternative access route may exist or be feasible does not preclude a court from ordering the private condemnation of property along the route requested by the party seeking the condemnation.  The court will, however, consider alternative routes presented by a defendant, and will balance relative hardships in determining which route will be ordered.  The goal of the statute is to allow landowners to make “effective use” of their land.  In determining what type of use should be allowed, courts will consider what uses the property is suitable for, including any applicable zoning.

Property owners who face access challenges to developing their property should consider private condemnation as a potential option.  The lawyers at Beresford Booth have a wealth of experience assisting property owners in negotiating easements, boundary line agreements, and purchase agreements, and pursuing litigation when necessary.  We would be happy to assist you with your boundary or easement dispute.

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