Highway AccessInverse Condemnation Litigation

Lessons Learned

Disclaimer: Opinions expressed are those of the speaker and not the opinions of the WA State Attorney General’s Office or the Attorney General

Historic Right of Highway Access: Crossing the intervening land of another – easement or permissive use?

Project:SR 270 Pullman to Idaho State Line

Temporary Bridge

Timeline• 2001 plan with frontage road approved• 2001 temporary bridge installed• 2004 revised plan without frontage road approved• 2006 construction starts• 2007 construction completed• 2007 temporary bridge removed• 2007 litigation starts• 2015 litigation completed

circa 1882 circa 1892

circa 1935

circa 1950

circa 1998

Inverse Condemnation• (1) taking or damaging• (2) of private property• (3) for public use• (4) without just compensation paid• (5) by a governmental entity that has not

instituted formal proceedings

Highway Access – Property Right

• Right of Reasonable Highway Access:

• owners of property abutting a state highway • RCW 47.50 Highway

Management Act

• non-abutters with “legal” easement to a state highway• WAC 468-51-030

Plaintiff ’s Theories• Grandfathered access under

the Highway Access Mgmt. Act• Easement by:

• prescriptive easement• implied easement• easement by necessity• vacated county road

• Abutter by reversion following railroad abandonment

• Union Elevator – right to reasonable, adequate, and commercially practicable access under unique facts

WSDOT’s Approach• failure to exhaust administrative

remedies• not an abutter

• no railroad abandonment• preemption under the Trails Act• dismissed quiet title actions against railroad

and county

• no easement• no evidence that use was other than

permissive• no common grantor• former road vacated, no private easement

retained

• subsequent purchaser doctrine• landlocked through actions of 1935

predecessor in interest

Lessons Learned

• sufficiency of search for records

• owner’s oral assertions• require substantiation

• statements by WSDOT• has “farm access”• has “informal access”

Lessons Learned

• objective observation

• “fell out of bed”

v.

• “patient found on floor”

Other Matters• landlocked property• private way of necessity (“private condemnation” – RCW

8.24)

• Granite Beach Holdings, LLC v. Dep’t of Natural Res., 103 Wn. App. 186, 11 P.3d 847 (2000)

• Williams Place, LLC v. State, 187 Wn. App. 67, 348 P.3d 797(2015) review denied (Sep. 30, 2015)

• Gamboa v. Clark, 183 Wn. 2d 38, 348 P.3d 1214 (2015)• permissive use v. prescriptive use• ending permissive use

Conclusion