§13.4 - Property Subject to Appropriation

• Jurisdiction: Washington

§13.4PROPERTY SUBJECT TO APPROPRIATION

"Property" is a very broad term when used in connection with eminent domain and may be liberally construed by the courts. It must be remembered that there are many kinds of interests that may be subject to condemnation. Property consists not merely of ownership and possession, but the unrestricted right of use, enjoyment, and disposal; anything that destroys one or more of these elements of property may be considered to destroy the property itself. See Ackerman v. Port of Seattle, 55 Wn.2d 400, 348 P.2d 664 (1960).

Examples of differing types of interests that are most often subject to appropriation are described below.

(1) Publicly held property

Publicly held property is property, land, easements, or rights owned or held by public entities. In general, publicly held property may be condemned only if there is a grant of that power from the legislature, Newell v. Loeb, 77 Wash. 182, 137 P. 811 (1913), and if it is for a superior public use, City of Tacoma v. Nisqually Power Co., 57 Wash. 420, 107 P. 199 (1910). Condemnation of public lands is limited to those held in a proprietary character in the absence of authority to the contrary. State v. Superior Court, 91 Wash. 454, 157 P. 1097 (1916).

Property already devoted to a public use cannot be condemned for the same public use. See State ex rel. South Fork Log-Driving Co. v. Superior Court, 102 Wash. 460, 173 P. 192 (1918). For example, one public power provider, such as Puget Sound Energy, cannot condemn property held by a smaller competitor for the same use.

There are exceptions, however, to this general rule. Under RCW 57.08.005, sewer and water districts may acquire privately held water and sewer utilities; cities may do likewise under RCW 8.12.030.

The same principles generally apply when a state condemns land held by the federal government. Unless there is congressional consent, states have no authority to take property held by the United States. Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939).

Practice Tip: Familiarize yourself with Title 8 RCW, as different public entities have varying degrees of authority to condemn. Also, when dealing with an eminent domain action on behalf of a special purpose district, such as a fire district, sewer and water district, or public facility district, be sure to refer to the specific statute authorizing condemnation by that agency.

Example: RCW 52.12.041 requires a fire district exercising the power of eminent domain to proceed in the name of the district in the manner provided by law for the appropriation of real property or of real property rights by private corporations; RCW 57.08.005 demands that a sewer and water district shall proceed with eminent domain actions in the same manner and by the same procedure as provided for cities and towns. RCW 70.44.060(2) precludes a public hospital district from condemning a health care facility.

(2) Access rights

Access to public roadways is a well-established property interest. Property that abuts a public road includes the right to free and convenient access to the public road: the right to ingress and egress is part of the land. See Fry v. O'Leary, 141 Wash. 465, 252 P. 111 (1927). Impairment of access can arise in a variety of contexts. For example, in Keiffer v. King County, 89 Wn.2d 369, 572 P.2d 408 (1977), the court held that a reduction of direct street access in front of commercial property from two 32-foot curb cuts was a sufficient impairment of access to be compensable. Similarly, in Union Elevator & Warehouse Co. v. State ex rel. Department of Transportation, 96 Wn. App. 288, 980 P.2d 779 (1999), the court found that the elimination of highway access to commercial property required compensation, even though the property did not directly abut the highway and there were other means of accessing the property. The court, however, denied summary judgment because there was a factual dispute as to whether alternative access actually existed for large trucks. See also Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 83 P. 316 (1906) (obstruction of access to corner lot from one street as part of approval of rezoning); Wong Kee Jun v. City of Seattle, 143 Wash. 479, 255 P. 645 (1927) (change of street grade).

The right to access is not absolute, however. Further, not all impairment of access is compensable. To merit compensation, the impairment of access must be "substantial," as held in Keiffer, 89 Wn.2d 369. Whether a substantial impairment of access has occurred is an issue for the trier of fact. Id. at 374. In Keiffer, the court adopted a two-step analysis to resolve the issue: the first inquiry focuses on whether the government action has actually interfered with the property owner's right to access; the second inquiry focuses on the degree of damage. Id. at 372-74.

Nor are condemning agencies required to pay for rights not yet in existence. For example, with a limited-access highway, the right to access does not exist if there was no previously existing highway. See State v. Calkins, 50 Wn.2d 716, 314 P.2d 449 (1957).

When dealing with property right of access, it may be necessary...