Daily Development for
Wednesday, October 21, 1998
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
EMINENT DOMAIN; DAMAGES; WAY OF NECESSITY: In a condemnation action for way of private necessity over a condemnee's existing road, a factfinder may consider the original cost of improvements of the road, the value of the land, and the price a willing buyer would pay for the rights, and the fact that the road is already in use and the servient owner is benefitting from it does not lead to the conclusion that the servient owner is not entitled to compensation.
Shields v. Garrison, 957 P.2d 805 (Wash. Ct. App. 1998).
Plaintiff owned a parcel of landlocked property, and initiated a condemnation action against the individual owners of two separate parcels, the Garrisons and the Fultons, between plaintiff's property and the nearest public road. On summary judgment, the trial court granted plaintiff an easement over the Garrisons' and the Fultons' undeveloped parcels of property, and an easement over an adjecent private road constructed by the Garrisons on their separate parcel.
Plaintiff argued that the Garrisons had already built the road, were using it to benefit other parcels they had subdivided and sold that abutted the road, as well as for their own benefit,and had realized a gain in the creation of the road both from the use of the road and the enhanced value of the other parcels and their own property. Consequently, plaintiff argued, there was no adverse consequence to the Garrisons from the road, and Garrisons should receive only nominal compensation.
The trial court considered as factors the cost of building the road and the value of land on which the road was built in calculating the fair market value of the roadway to determine the compensation plaintiff should pay to the Garrisons.
On appeal, held: Affirmed. The appeals court, in discussing the compensation for the road over the undeveloped parcel,acknowledged that detriment to a servient parcel might be a basis for determining compensationin these cases. But it stressed that this was not the only consideration. The Constitutional injunction was that the servient party should receive "fair compensation." The court reasoned that condemnation of an improved road was like that of improved property. It was proper to consider factors such as the value of similar property, the original price paid, improvements, and the desirability of the property, among others, in determining the compensation "price" to be assessed to the plaintiff. It noted that the condemnation was the equivalent of a sale of the easement rights to the plaintiff, and that its action was a substitute for a market transaction. In such transactions, of course, the fact that the seller also is enjoying the benefit of the easement would be of only incidental signficance. The parties to the sale would nevertheless expect the seller to allocate a portion of the costs of acquiring and developing the easement to the purchaserof the easement rights.
Comment: Note that this right to condemn a way of necessity over adjacent parcels is quitedistinct from the right to demand a way of necessity at no cost from the party who has created a landlocked parcel by subdividing. The way of necessity in this case is a creature of constitutional language, not common law, and the state constitution quite properly requires that the dominant tenant pay for the privilege. The servient tenant's position in this case seems unassailable. Of course the fact that the servient tenant has created a benefit for itself should not lead to the conclusion that it can receive no compensation if a stranger exercises an eminent domain right to share in that benefit.
Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or email@example.com
Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.