Opinion
No. 21379-0-III.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Adams County. Docket No: 00-2-00146-4. Judgment or order under review. Date filed: 08/07/2002. Judge signing: Hon. Philip Borst.
Counsel for Appellant(s), Kenneth Wendell Masters, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
Richard William Pierson, Kingman Peabody Pierson, 505 Madison St. Ste 300, Seattle, WA 98104-1123.
Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
Counsel for Defendant(s), Gary John Brueher, Attorney at Law, 831 S Hummingbird Dr, Othello, WA 99344.
Counsel for Respondent(s), Steve Edwin Dietrich, Attorney at Law, 905 Plum St. Bldg 3, PO Box 40113, Olympia, WA 98504-0113.
Ann Elizabeth Salay, Attorney at Law, Atty General S Ofc, PO Box 40113, Olympia, WA 98504-0113.
This is a condemnation case. At issue is the viability and thereby compensability of the condemnees' (landowners') rights to commercial access to a state highway. But those access rights were conveyed to the State over 50 years ago by a valid deed. We therefore affirm the trial judge's summary dismissal of the landowners' damage claims based on the commercial access from the condemned property to the highway.
FACTS
In June of 2000, the State petitioned to condemn property in Adams County for an overpass at the intersection of State Route (SR) 17 and SR 26. All this is near Othello, Washington.
Two parcels are involved. The first, Parcel No. 2-03079 (parcel 79), is a 14.90-acre tract which the State sought in its entirety. The second, Parcel No. 2-03082 (parcel 82), includes 141.02 acres. The State sought only 2.87 acres of it. Siblings Kathleen Ward and Charles Brownlow (landowners) jointly owned the parcels. The court entered an order adjudicating public use in July of 2000 and set the matter for trial on compensation.
This is a diagram of the property:
History of SR 17
SR 17 runs north and south. It abuts the western edges of parcels 79 and 82.
On June 25, 1953, the Highway Commission adopted Resolution 84, which established SR 17 as a partially controlled `newly located' limited access highway between Soap Lake and Eltopia, Washington. On July 17, 1953, the landowners' predecessors in title, Viola and Clayton Michel, `for and in consideration of the sum of Ten . . . Dollars, and other valuable consideration' conveyed a `perpetual easement' to the State for 20.4 acres which became SR 17. Clerk's Papers (CP) at 56-58. They `convey[ed] and warrant[ed]' to the State `the perpetual and exclusive right, permit and easement to use and occupy' the property `for the construction, operation and maintenance of a highway thereon, including the right to grant permits and/or franchises and to regulate and exercise traffic police power,' and [a]s an essential part of this transaction, the undersigned, as the owners of the [property], across which this easement is conveyed, do for themselves, their heirs, successors and assigns, sell, transfer, convey and relinquish to the State of Washington, its successors and assigns forever, all existing, future or potential easements of access, light, view and air, and all rights of ingress, egress and regress to, from and between the easement herein conveyed, including the highway or highways constructed or to be constructed thereon or along, and the remainder of said [property]. CP at 56, 57 (emphasis added). The conveyance excepted one private approach. The covenants ran `with the land and shall forever bind the grantors, their heirs, successors or assigns.' CP at 57.
History of SR 26
In 1955, the Highway Commission adopted Resolution 274, which established SR 26 east of SR 17 as a `newly located' limited access highway. This east-west highway divides parcels 82 and 79. It abuts the south boundary of parcel 82 and the north boundary of parcel 79.
In 1957, the State condemned a portion of parcels 79 and 82 including all rights of ingress and egress, if any, (including all existing, future or potential easements of access, light, view and air) to, from and between said [SR 26] and the remaining portions of said Farm Unit 93, EXCEPT that reasonable access shall be granted to that Off and On approach not to exceed 20 feet in width for those uses necessary to the normal operation of a farm on each [side] of said highway at Station [illegible]. CP at 41.
SR 26 also abuts the north boundary of Farm Unit 137, now owned by Kathleen Ward alone. Farm Unit 137 joins with the east boundary of parcel 79. Farm Unit 137 has highway access for farm purposes and operation and maintenance of an irrigation canal.
PROCEDURE
The State moved for partial summary judgment to limit the value of the condemned property to agricultural use rather than the more valuable commercial use. It argued that the land had no commercial value because the landowners had no commercial access to either SR 26 and SR 17. The landowners argued that the State had failed to comply with the statutory requirements for the acquisition of land and the establishment of a limited access highway in 1953. And therefore no limited access highway was established and the landowners' access to these roadways was accordingly unlimited. The trial court agreed with the State. It held that the landowners `do not have a compensable real property interest in commercial access onto SR 17 or onto SR 26.' CP at 281-82.
The State anticipated an argument by the landowners that parcel 79 had commercial value because they could obtain commercial access to SR 26 for parcel 79 through Farm Unit 137. It again moved for summary judgment to prohibit any such argument. The landowners also asked the court to reconsider its first summary judgment. The court held the landowners could present evidence of commercial uses, but could not `present evidence or testimony that would combine parcel 79 with Farm Unit 137.' CP at 577. And it refused to allow the landowners to present evidence that parcel 79 had commercial access to SR 17. It also declined to reconsider its first summary judgment.
At trial the landowners offered evidence and argued the commercial value of their property. The jury returned a verdict of $43,000 for parcel 82 and $43,000 for the larger parcel 79. The landowners appeal the value awarded for parcel 79.
DISCUSSION State's Acquisition of SR 17 Property
The landowners argue that the State's acquisition of an interest in property for SR 17 did not extinguish the abutting landowners' access rights for two reasons: (1) the State failed to acquire the land in fee simple as required by statute; and (2) the State failed to give the landowners' predecessors in interest notice and an opportunity to be heard when it converted the existing roadway into a limited access highway.
Standard of Review
The question presented is one of law — whether the State's procedure for acquiring this property in 1953 was legally flawed to the extent that the landowners' access rights remained. Our review is de novo. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Procedure: Limited Access Highway
[A] `limited access facility' is defined as a highway or street especially designed or designated for through traffic, and over, from, or to which owners or occupants of abutting land, or other persons, have no right or easement, or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility. . . . RCW 47.52.010.
The language of former RCW 47.52.050 (Laws of 1947, ch. 202, sec. 4) provides that `[a]ll property rights acquired under the provisions of this act shall be in fee simple.' The landowners contend that the State did not acquire the property for SR 17 in fee simple title. And the abutting landowners' access rights were then not extinguished.
Former RCW 47.52.050 is an eminent domain statute. State ex rel. Sternoff v. Superior Court for King County, 52 Wn.2d 282, 298, 325 P.2d 300 (1958); State ex rel. Eastvold v. Superior Court for Skagit County, 44 Wn.2d 607, 609, 269 P.2d 560 (1954). The statute must then be read in the context of eminent domain law.
`It is fundamental that the condemning party cannot take more than his reasonable necessities require.' Spokane Valley Land Water Co. v. Arthur D. Jones Co., 53 Wn. 37, 48, 101 P. 515 (1909). The effect of former RCW 47.52.050 was to expand the State's condemnation rights, not restrict them. The statute allowed the State to take the entire estate in land Without the aid of this statute, the State's taking would be limited according to the `universal rule that the condemner may take no greater interest than is reasonably necessary for the contemplated public use or necessity.' City of Tacoma v. Humble Oil Ref. Co., 57 Wn.2d 257, 260, 356 P.2d 586 (1960).
Moreover, this property was not acquired as the result of a condemnation proceeding. The landowners' predecessors sold the property to the State for a highway. And access was an important part of the transaction:
As an essential part of this transaction, the undersigned, as the owners of the [property], across which this easement is conveyed, do for themselves, their heirs, successors and assigns, sell, transfer, convey and relinquish to the State of Washington, its successors and assigns forever, all existing, future or potential easements of access, light, view and air, and all rights of ingress, egress and regress to, from and between the easement herein conveyed, including the highway or highways constructed or to be constructed thereon or along, and the remainder. . . . CP at 57 (emphasis added). The statutory scheme relied upon by the landowners in no way limits the State's ability to bargain and contract for property.
Pre-existing Road
The landowners also claim that they raised an issue of fact as to the existence of a roadway prior to the construction of SR 17. If one did exist, they argue, the State was required to follow the notice requirements of former RCW 47.52.072 (Laws of 1951, ch. 167, sec. 6), amended and recodified as RCW 47.52.133. But the landowners' predecessors knew that a highway was being constructed. They conveyed land and access rights for that specific purpose. In short, they had actual notice. Any statutory notice would be unnecessary. See State v. Lauman, 5 Wn. App. 670, 676, 490 P.2d 450 (1971) ('If the purpose of a notice is achieved by other means, noncompliance with statutory requirements for service is without prejudice.'); In re Local Improvement Dists. Nos. 1-58 2-58, 57 Wn.2d 499, 358 P.2d 314 (1961)). Indeed, the only purpose of the notice would be a hearing where `the single question to be determined . . . is whether factors of public convenience and necessity justify the designation of an existing highway, road or street as a limited access facility.' State v. Besselman, 55 Wn.2d 524, 526, 348 P.2d 406 (1960). And the predecessors here by their conveyance agreed to public convenience and necessity. Even if we held that notice was required, the remedy for failure to give notice is not voiding the limited access designation. Failure to give the notice under the statute prevents the authority from instituting a condemnation action. Sternoff, 52 Wn.2d at 298. But again the procedural niceties of a condemnation action is not the issue here. This property was voluntarily conveyed. Finally, it seems to us that a landowner cannot be heard to complain of procedural irregularities in a condemnation proceeding 50 years after the fact. See Davidson v. State, 116 Wn.2d 13, 25-26, 802 P.2d 1374 (1991) (discussing doctrine of laches).
Former RCW 47.52.072 provided that no existing roadway could be established as a limited access facility until the owners of property abutting the roadway were given notice in the matter set forth and an opportunity to be heard on the issue.
Newly Discovered Evidence
The landowners next argue that the trial court abused its discretion by refusing to vacate the summary judgment order in light of newly discovered evidence. This evidence included aerial photographs showing a road before SR 17 was built. The net effect of this, they claim, was to require notice under former RCW 47.52.072. But as we have concluded, notice was not required. The new evidence is not then material. Evidence of Commercial Access through Adjoining Parcels The court refused to allow the landowners to present evidence that access could have been obtained from various portions of the roadway, including Farm Unit 137. They assign error to that ruling.
We review a decision to exclude evidence at trial for an abuse of discretion. Reese v. Stroh, 128 Wn.2d 300, 310, 907 P.2d 282 (1995). The landowners offered an exhibit of a development plan complete with direct commercial access to the highways. The State objected to the admission of the exhibit because it showed access which the court ruled the landowners did not own. The court ruled that the State could cover the status of the access rights in cross-examination. The landowners made an offer of proof through testimony of a land use expert. He testified that there is a process for obtaining `a break in access permit' for limited access facilities like SR 17 and SR 26. Report of Proceedings (May 23, 2002) (RP) at 65-67. But again those access rights did not exist. The court ultimately held that it would not allow evidence concerning the `possibility' of commercial access through other parcels for the benefit of the landowners' parcels because it was too speculative. RP at 201. The landowners here did not own the easement shown as part of their development nor was any commercial access to SR 26 in place at the time of the taking. That is a tenable ground or tenable reason for the judge's decision to exclude that evidence. Town of Kirkland v. Cochrane, 87 Wn. 528, 531-32, 151 P. 1082 (1915).
Attorney Fees
RCW 8.25.070 provides for an award of the condemnee's attorney fees at the trial level if certain conditions relative to a settlement of the case before trial are met. The landowners were allowed such fees at the trial court level.
The same is not true when on appeal. A landowner appealing from the award in condemnation proceedings is liable for the costs of appeal. Town of Redmond v. Perrigo, 84 Wn. 407, 410, 146 P. 838 (1915); Kitsap County v. Melker, 52 Wn. 49, 52-53, 100 P. 150 (1909).
The landowners cite State v. Kodama, without analysis, to support an award of fees on appeal. State v. Kodama, 4 Wn. App. 676, 483 P.2d 857 (1971). There, the court held that attorney fees were due the condemnee on appeal where the State appealed the verdict and the condemnee only cross-appealed the part of the judgment that did not allow them attorney fees on appeal. Id. at 680. The court reasoned that just like in the condemnation action at trial, the appeal was forced upon the condemnee, it was essential to success, and diminished the award. Id. Here, the condemnees filed the appeal. It cannot then be said to be similarly foisted upon them. Cf. City of Renton v. Scott Pac. Terminal, Inc., 9 Wn. App. 364, 377-78, 512 P.2d 1137 (1973) (condemnee entitled to attorney fees on appeal where city filed the appeal).
We affirm the judgment of the trial court and deny the landowners' request for fees.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KURTZ and BROWN, JJ., concur.