State ex rel. Carlson v. Superior Court, 107 Wash. 228,

 230    STATE EX REL. CARLSON v. SUPERIOR COURT.
                     Opinion Per CHADWICK, C.J. 107 Wash.

that merchants had refused to deliver goods to his
family unless a road was established. Other witnesses
testified that the road was impassable for the greater
part of the year as it now exists; that the way was
over high and difficult hills and low boggy ground.
Others testified that there was no reasonable way out
of the tract unless it be over the Carlson land.

Relater testified that as good a grade could be made
across the Davis land as across his land, and for an
equal amount of money; that he could, at a reasonable
cost, build a good road across the D. J. Davis land at
a grade not exceeding five per cent at any place; that
it would be necessary to make a steep grade down a
hill and a bridge at least one hundred feet long to go
over his land; that he has cleared and seeded to grass
the boggy ground on the north line of his place; that
a road over it would have to be filled or planked so
as to make a passable roadway in the wintertime; that
he had worked for a road contractor for several years
and knew the cost of road construction, and that a road
could be built as cheaply and conveniently over the
one way as the other. He further testified that he had
dammed the creek and excavated a large fish pond on
the line of the proposed way at a cost of over three
hundred dollars, and that the establishment of a way
of necessity would ruin it.

A. P. McDonald testified that he had eighteen years'
experience in road building, had worked for lumbering
companies, laid out roads for them, and knew in a general
way all that anybody does in regard to laying out
roads. He further testified:

"I was one of the viewers appointed by the court in
the first case brought by the plaintiff against the
Carlsons, which case was dismissed. I looked over this
matter very carefully, and came to the conclusion that
I could not determine whether it would be more feasible
                STATE EX REL. CARLSON v. SUPERIOR COURT. 231
May 1919               Opinion Per CHADWICK, C.J.
to build a road across the D. J. Davis land or
across the Carlson land. I could not do this unless I
made an accurate survey of it, and I was not employed
to do that. I came to the conclusion, as best I could
without an actual survey, that it was about an even
break between the two, - that is, one road would be
about as good as the other, and would cost about as
much. It is not possible for anybody to tell accurately
about one of these roads without a survey. There
would be some grading to do on both roads. There
would be more grading on the Davis land than on the
Carlson, but there would not be as many fills or as long
a bridge on the Davis land."

A brother of relator testified that there would be no
material difference in cost; that a road over the Davis
land would be better because it would not have a steep
grade on it; that there would be a very steep grade to
go from the petitioner's land to the relators' land;
that the grade would land on a bridge, and that a road
fifteen feet wide could not be built without making a
deep cut away back on the petitioner's land.

Mr. Anderson, county assessor, testified that, in
order to get off the Davis land onto the Carlson land, a
bridge at least sixty feet long would have to be built.
In rebuttal, D. J. Davis testified that, if a road was put
over his land, it would require a bridge forty or fifty
feet long.

It is argued that the way over the Davis land is impassable
and impractical, and out of these things a
necessity arises.

The court found that the establishment of a private
way of necessity over relators' land was necessary and
that the petitioner had no means of ingress or egress
from his premises, and that the most practical route
for the roadway was over and upon the land of the
relators. From these findings the court concluded that
there was a necessity for the establishment of a roadway

 232    STATE EX REL. CARLSON v. SUPERIOR COURT.
                     Opinion Per CHADWICK, C.J. 107 Wash.

from the lands of the petitioner, and that the most
practicable route for said road is along the north line
of relators' property. We are called upon to review
the order of necessity.

When D. J. Davis sold a part of his land to the
petitioner, an easement or way of necessity was implied in
the grant. This was the rule of the common law. It
has been followed almost, if not quite, universally in
other states and has never been questioned in this
state. Schulenbarger v. Johnstone, 64 Wash. 202, 116
Pac. 843, 35 L. R. A. (N. S.) 941, and cases there cited.
So that the question of law is whether one, having a
legal right to pass over the lands of his grantor, may
reject the way that the law gives him and which his
grantor cannot deny him, and compel a way of necessity
over the lands of a stranger, where, upon a mere
admeasurement of convenience and expense, it is held
that the way over the land of the stranger is the more
practicable than the way over the land of the grantor.

At common law, and with us, there is no such thing
as a way of necessity over the lands of a stranger, for
a way of necessity arises out of contract and is
grounded in the doctrine of estoppel. Schulenbarger
v. Johnstone, supra. So it may be said that, notwithstanding
a statute gives a land-locked owner the right
to condemn a way of necessity over the lands of a
stranger, it is not a favored statute, and the taking
will not be tolerated unless the necessity is paramount
in the sense that there is no other way out or that the
cost is prohibitive, for it must be borne in mind that,
after all, this is a condemnation proceeding. We are
taking the property of one man and giving it to another.
Const., art. 1, SS 16. There is a constitutional
right involved, and such rights should not be so lightly
regarded that they may be swept away to serve convenience
and advantage merely.
                STATE EX REL. CARLSON v. SUPERIOR COURT. 233
May 1919               Opinion Per CHADWICK, C.J.

The statute provides:

"An owner . . . of land which is so situate with
respect to the land of another, that it is necessary for
its proper use and enjoyment to have and maintain a
private way of necessity . . . on, across, over or
through the land of such other, for agricultural, domestic,
or sanitary purposes, may condemn and take
lands of such other sufficient in area for the
construction and maintenance of such private way of
necessity." Laws 1913, p. 412, SS 1 (Rem. Code, SS 5857-1).

The burden of proof is on the petitioner to show a
reasonable necessity. We are of opinion that the petitioner
did not maintain this burden; and further, that
the legal conclusion of necessity does not follow a
finding that the way over relators' lands was the most
practicable way of egress and ingress from and to the
petitioner's lands.

The testimony shows no more than this: That the
way over the grantor's land would be over a hill that
must be graded, over a small stream that must be
bridged, and boggy ground that must be planked or
filled; that, to go over relators' land, a deep cut would
have to be made in the hill or bench ground to allow
the road to descend to the low ground; that a stream -
probably the same stream - would have to be bridged;
that the boggy ground would have to be planked or
filled. While it may be said that neither way is practical
and convenient as it is, it does not follow that
either way may not be made so. There is a difference
between necessity and mere convenience. A man having
a present right of way may find a more convenient
way over the land of another, but he may not take it
under a claim that it is necessary to the proper use
and enjoyment of his land or to save expense, unless
there is no other passable way or the expense would
be prohibitive. It is true that Davis, the grantor, has

 234    STATE EX REL. CARLSON v. SUPERIOR COURT.
                     Opinion Per CHADWICK, C.J. 107 Wash.

testified that a road over his land would cost more
than the petitioner's land is worth, but he is not borne
out by the history of the case.

On this phase of the case we are most impressed
with and, as against the testimony of interested witnesses,
are inclined to follow, the testimony of the witness
McDonald. That he is a man of standing and
judgment we infer from the fact that he was one of
the commissioners appointed by the court upon a
previous hearing of this same matter. The only difference
that we can measure is that, of the two routes,
the one over the Davis land would be longer, slightly
circuitous, and would possibly cost more to improve,
while the way over the land of the relators would be
shorter and follow a straight line.

We give no heed to the testimony that the way over
the Davis land is impassable, for it is plain that the
witnesses had in mind the winter season and the present
condition of the land. The same may be said of
the relators' land. Both ways are impassable and impracticable
in the winter season without improvement,
and when petitioner bought his land with the implied
right to go and come over the land of his grantor, he
took upon himself the burden of improving the way,
and that burden will not be measured by relative cost.
To illustrate: Say an owner had cleared his land out
of the big timber and had seeded it to grass or crops,
and an adjoining owner of uncleared land had sold a
tract within his own enclosure to a stranger, could it
be said that the land-locked owner, having an implied
way of necessity over his grantor's land, could condemn
a way over the cleared land of the stranger because
it was more convenient and would be less expensive
than it would be to cut down the trees and grub
out the stumps on his grantor's land?
                STATE EX REL. CARLSON v. SUPERIOR COURT. 235
May 1919               Opinion Per CHADWICK, C.J.

The general subject of necessity is treated in 21
R. C. L., p. 1214 et seq. While the text and the cases
there cited deal generally with ways of necessity in the
strict sense, as distinguished from the condemnation
of a private way of necessity, we apprehend that the
same rule would apply, for, assuredly, a greater
interest could not be condemned than would arise under the
implications of a grant. It will be noticed that there
is a division of authority, some cases holding that the
necessity requisite to create a right of way (or, as we
may say, to give a right of condemnation) must be absolute
and indispensable, and others that no more is
required than a showing of reasonable necessity; that
it is sufficient if it be shown that no other way can be
made without unreasonable labor and expense, and
that the reasonableness of the labor and expense is
determined by the cost of creating the way as compared
with the value of the property. But however this may
be, it is said that mere inconvenience, no matter how
great, will not sustain the right to insist upon a way
of necessity. In this state we have perhaps adopted
the rule of reasonable necessity. Samish River Boom
Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670;
State ex rel. Mountain Timber Co. v. Superior Court,
77 Wash. 585, 137 Pac. 994; State ex rel. Washington
Boom Co. v. Chehalis Boom Co., 82 Wash. 509, 144 Pac.
719.

In the Samish River Boom Co. case, supra, it is said:

"But the word 'necessity,' as used in the statute,
'does not mean an absolute and unconditional necessity,
as determined by physical causes, but a reasonable
necessity, under the circumstances of the particular
case, dependent upon the practicability of another
route (here another location), considered in connection
with the relative cost to one, and probable injury
to the other.'"

 236    STATE EX REL. CARLSON v. SUPERIOR COURT.
                     Opinion Per CHADWICK, C.J. 107 Wash.

The word "necessity" cannot be defined in such a
way as to meet every case; its meaning must be found
in the facts and circumstances disclosed in the instant
case, and while the words used by the court in the
Samish River Boom Co. case might seem to apply to
the case at bar, considering the facts in this case and
the facts in the cases cited, we are not inclined to
follow them without qualification. In this case, as we
have shown, it is a mere matter of inconvenience and
added expense, but yet within bounds, to an individual
owner. In the cases cited, it was a necessity arising
out of the needs of a public service corporation, where
either the line of a railroad over a general route or the
windings and physical features of a stream were to be
considered.

But certain it is that the rule should be more strict
between private owners, who are strangers in title,
than between public service corporations, who are in
law representing a necessity common to the whole
public. In law, the land of D. J. Davis is the land of
the petitioner. A way of necessity

"never exists where a man can get to his property
through his own land. That a road through his neighbours
would be a better road, more convenient, or less
expensive, is not to the purpose; . . . It is only
where there is no way through his own land, that right
of way over the land of another can exist." McDonald
v. Lindall, 3 Rawle (Pa.) 492.

See, also, Hyde v. Jamaica, 27 Vt. 443; Alley v.
Carleton, 29 Tex. 74, 94 Am. Dec. 260; Carey v. Rae,
58 Cal. 159.

A few of the states have constitutional provisions
with reference to the taking of ways of necessity in
eminent domain similar to our own; Georgia is one of
these. In Gaines v. Lunsford, 120 Ga. 370, 47 S. E. 967,
102 Am. St. 109, it was shown that the plaintiff's farm
                STATE EX REL. CARLSON v. SUPERIOR COURT. 237
May 1919               Opinion Per CHADWICK, C.J.
was touched by two "settlement" roads, and that he
could have reached either over his own land without
crossing the plantation of Gaines. It was claimed,
however, that a farm road from plaintiff's dwelling
would have to cut across a deep cut or obstruction in
his field; that it would have been expensive to have
constructed the route over the same, and that a way
thus laid out would lead to "settlement" roads which
were steep, hilly, and in such bad condition that it was
impossible to haul more than half a load. The court
held that the constitution provides for ways of necessity,
but not for those of convenience, and upon the authority
of Chattanooga R. & S. R. Co. v. Philpot, 112
Ga. 153, 37 S. E. 181, that:

"If there is a way by which the applicant can lawfully
reach his farm or place of residence, a case of
necessity does not exist,"
and that, if the land could be reached, although by a
distant or difficult road, the one claiming a way of
necessity is not entitled thereto.

The principle is well stated in Lawton v. Rivers, 2
McCord (S.C. Law Rep.) 445, 13 Am. Dec. 741:

"But there must be an actual necessity, and not a
mere inconvenience, to entitle a person to such right.
One man is not required to subject himself to an
inconvenience, and much less to an actual loss, for the
accommodation of another. I do not mean to say that
there must be an absolute and irresistible necessity;
an inconvenience may be so great as to amount to that
kind of a necessity which the law requires, and it is
difficult, and perhaps impossible, to lay down with
exact precision the degree of inconvenience which will
be required to constitute a legal necessity. It is apparent,
however, that no such necessity existed in this
case. The plaintiff has a navigable water-course from
his door to the public road or highway, by which the
distance is not greater than by land; and although
           STATE EX REL. BEST v. SUPERIOR COURT.
                     Statement of Case.           107 Wash.

there may be some inconvenience in being obliged always
to go by water when he visits his plantation, yet
it is not greater than necessarily attends every insular
situation, and perhaps not so great to him as it would
be to his neighbor, to keep up a lane through his
plantation for his accommodation; and even if it was
greater, it was one of which he was aware when he
purchased (or those under whom he claimed), and
may, therefore, be considered of his own creation."

We hold that petitioner has not maintained the burden
of proof, and that, although the finding of the court
be sustained that the way over relators' land is more
practicable than a way over the land of petitioner's
grantor would be, this in itself is insufficient to sustain
a legal conclusion of necessity.

Reversed.

MITCHELL, TOLMAN and MOUNT, JJ., concur.