18 P.3d 540 (2001) 143 Wash.2d 126

Wilbur G. HALLAUER and Josephine Hallauer, husband and wife; and Champerty Shores Owners Association, a Washington nonprofit corporation, Petitioners,
v.
SPECTRUM PROPERTIES, INC., a corporation, Defendant,
Ernesto C. Del Rosario and Madeliene B. Del Rosario, husband and wife, Respondents.

No. 68554-1.

Supreme Court of Washington, En Banc.

Argued June 27, 2000. Decided February 22, 2001.

*541 Mansfield, Reinbold & Gardner, Owen M. Gardner, Okanogan, WA, Perkins, Cole, Charles W. Lean, Charles B. Roe, Olympia, WA, for petitioners.

Maxey Law Offices, Bevan Jerome Maxey, Spokane, WA, Diane Marie Walker, Spokane, WA, for respondents.

MADSEN, J.

Wilbur G. and Josephine Hallauer, who hold a certificated water right to water from a spring on neighboring land, seek to condemn a way across that land for transporting water to their property for domestic use, and to ponds for fish propagation. The Court of Appeals held that because the Hallauers' property is not landlocked and alternative sources of water are available, the Hallauers failed to prove a reasonable necessity for condemnation. We reverse the Court of Appeals and hold that the Hallauers are entitled to proceed with their condemnation action.

FACTS

The Hallauers and respondents Ernesto C. and Madeliene B. Del Rosario own adjacent property on the shore of Lake Osoyoos *542 in Okanogan County. Donald Thorndike was the Del Rosarios' predecessor in interest. In the mid-1970's, part of a bluff on Thorndike's property collapsed, revealing a natural spring. In the early 1980's the Hallauers built a home on their property with a heat pump and cooling system that used water from a well. The first winter, the heat pump froze because the water from the well was too cold for its proper operation. Mr. Hallauer learned that the water from the spring on Mr. Thorndike's property would be satisfactory for operation of the heat pump as well as for supplying water to ponds intended for fish propagation.

Mr. Thorndike and Mr. Hallauer agreed that Mr. Hallauer would apply to the Department of Ecology for a water right entitling him to withdraw water from the spring on the Thorndike property, and when the water right was granted Mr. Hallauer would pay Mr. Thorndike $500.^[1] In March 1982, Mr. Thorndike signed the application for the water right as owner of the property, and Mr. Hallauer signed as the applicant. In March 1984, Mr. Hallauer sent a letter to Mr. Thorndike saying the application had been approved and enclosed a check for $500.

Mr. Hallauer developed the spring and installed a pipeline to transport water from the spring to his property for the heat pump and fish ponds. The property on which the ponds are located was developed into the Champerty Shores development, a private community. In 1984, fish were added to the ponds. In October 1984, the Department of Ecology issued a certificate of water right.

Mr. Thorndike's property was acquired by Spectrum Properties, Inc. following foreclosure proceedings. In October 1989, Mr. Del Rosario entered into a real estate contract for the purchase of the property, took possession, and began managing an apple orchard on it. During roadwork on the property, the Hallauers' pipeline was discovered, and the Del Rosarios demanded that the pipeline be removed.

Litigation ensued. Although the Hallauers originally obtained a judgment quieting title to a prescriptive easement across the Del Rosarios' property, that decision was reversed on appeal. On remand, the Hallauers sought, among other things, to condemn an easement for a pipeline to carry water from the spring to their property. Petitioner Champerty Shores Owners Association was added as a necessary party plaintiff because it had taken ownership of the fish ponds and an interest in the spring right. The trial court held that the Hallauers had failed to show a reasonable necessity for a private condemnation. On appeal, the Court of Appeals affirmed. This court granted discretionary review.

ANALYSIS

Although several other grounds for relief have been argued during litigation between the parties, the only matter before this court is whether the Hallauers are entitled to condemn an easement across the Del Rosarios' property for a pipeline to transport water from the spring to their property for use in the heat pump and cooling system and as a water supply for propagation of fish.

The authority to condemn a right of way to transport water has long existed in this state, both by constitutional and statutory provisions. The chief question posed by this case is whether the showing of necessity to condemn a right of way to transport water is identical to the showing required to condemn a private way of necessity. The Court of Appeals held that "necessity" means the same in both contexts, relying on RCW 8.24.010. We disagree because RCW 8.24.010 does not apply in the context here.

As we explain below, RCW 90.03.040 provides the statutory authority for condemnation in this case. Among other things, the statute directs that "property or rights shall be acquired [through condemnation] in the manner provided by law for the taking of private property for public use by private corporations." RCW 90.03.040. Therefore, chapter 8.20 RCW (eminent domain by corporations), rather than chapter 8.24 RCW, *543 provides the procedures for condemnation. RCW 8.20.070 states that at the hearing on a petition to condemn where the contemplated use is a public use, the court will enter an order of public use and necessity if it is "satisfied by competent proof that the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use ... that the public interest requires the prosecution of such enterprise ... and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise."

In order to determine whether the Hallauers are entitled to an order of public use and necessity, we examine both public use and necessity, as the three conditions set out in RCW 8.20.070 are interrelated. See State v. Belmont Improvement Co., 80 Wash.2d 438, 442-43, 495 P.2d 635 (1972); State v. Dawes, 66 Wash.2d 578, 583, 404 P.2d 20 (1965). Also, the public interest condition and the necessity condition "are generally subsumed under the definition of `necessity'." City of Seattle v. Mall, Inc., 104 Wash.2d 621, 623, 707 P.2d 1348 (1985). The interrelatedness of the conditions is particularly apparent where water rights or rights of way to transport water are concerned. This is because of the adoption of the prior appropriation doctrine in this state for acquisition of new water rights; condemnation of rights of way to transport water is an integral component of application of water to beneficial use.

Accordingly, we begin by discussing the public use condition as a predicate to discussion of the necessity condition.

Our analysis begins with article I, section 16 of the Washington State Constitution, which provides:

Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made....^[2]

As an initial matter, this constitutional provision does not require that condemnation for rights of way to transport water is subject to the same criteria as condemnation for private ways of necessity. The first sentence of article I, section 16 carves out two forms that a condemnation for "private" use may take. The constitution states the exceptions to the rule that private property may not be taken for private uses as: "except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes ." Const. art. I, § 16 (emphasis added).

This distinction was carried out in enabling legislation. In 1913, Rem.Rev.Stat. § 936-7 (RCW 8.24.010) was enacted to replace certain earlier enabling statutes. It provides for condemnation of "lands of [another] sufficient in area for the construction and maintenance of such private way of necessity, or for the construction and maintenance of such drain, flume or ditch, as the case may be." RCW 8.24.010. The title of the 1913 act containing RCW 8.24.010, like the constitutional provision, also sets forth the two types of condemnation authorized for private uses: "AN ACT relating to the taking of private property for private ways of necessity and for drains, flumes and ditches on or across the lands of others for agricultural, domestic or sanitary purposes." Laws of 1913, ch. 133, at 412 (emphasis added).

Thus, neither article I, section 16 nor some of the early enabling legislation mandates treating condemnation for a right of way to transport water the same as a condemnation for a private way of necessity.

Although RCW 8.24.010 was enacted as an enabling provision for article I, section 16, it soon gave way to RCW 90.03.040 where condemnation of water rights or rights of way to transport water are concerned. Rem.Rev. Stat. § 7354 (RCW 90.03.040) was enacted as part of the 1917 water code under which the prior appropriation doctrine became the sole method for acquisition of new water *544 rights. It provides in part that "[t]he beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use."^[3] RCW 90.03.040.

This statute was needed in order to implement the prior appropriation doctrine. Before adoption of the 1917 water code, two water rights doctrines applied in Washington. Under the doctrine of riparian rights, an owner of land on a stream or other body of water has the right to use the water. Crook v. Hewitt, 4 Wash. 749, 31 P. 28 (1892). The second doctrine, the prior appropriation doctrine, developed in the arid western states, and "provides that a right to water can be established only by putting water to beneficial use and that the first such use in time is the first such use in right." Charles B. Roe & Peter R. Anderson, Water Law, in 1C Kelly Kunsch, Washington Practice: Methods of Practice § 91.4 (4th ed.1997). Both of these types of water rights could be acquired in Washington in its early history.

Where a riparian water right was involved, the water right holder generally had access to sufficient water because water was adjacent to or within the holder's property.^[4] However, prior appropriation rights, by definition, do not require that the owner's land abut a stream or other water body. Where appropriative rights are concerned, there "need be no relationship between the source of the water and the locus of use." A. Dan Tarlock, Law of Water Rights and Resources § 5.24, at 5-41 (2000). Accordingly, there must be some means of delivering the appropriated water to the owner's land. The authority to condemn property for rights of way to transport water is thus an essential part of the prior appropriation scheme: "Access to water open to appropriation can generally be acquired by eminent domain. To prevent de facto riparianism, western states passed statutes permitting a water rights claimant to condemn the necessary rights of way to bring the water from the stream to the place of his use." Id. at 5-42.

The constitutionality of these statutes was originally at issue because the power of eminent domain was limited to public uses. Id. at 5-43. However, by the time RCW 90.03.040 was enacted the validity of such statutes was settled. In Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085 (1905), the Court upheld a Utah statute granting the right to condemn land for the purpose of conveying water in ditches across that land for irrigation of the condemnor's land alone. The Court observed that

[w]here the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use *545 is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the State, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the use clearly be private.

....

[Water rights] are not the same in the arid and mountainous States of the West that they are in the States of the East. These rights have been altered by many of the Western States, by their constitutions and laws, because of the totally different circumstances in which their inhabitants are placed....

Clark, 198 U.S. at 367-68, 370, 25 S.Ct. 676. It is now settled that "[e]minent domain may be used to transport water so long as the use is beneficial; beneficial uses are presumed public uses." Tarlock, supra, § 5.24, at 5-42.

RCW 90.03.040, like statutes in other western states, declares that the beneficial use of water is a public use. This declaration of public use applies even if the water is used by an individual solely on that individual's private land. Article I, section 16 speaks both of condemning private property for private uses, including "for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes," and of private property for public purposes. However, "private use" as used in the constitutional provision is imbued with a public nature where condemnation of water rights and rights of ways to transport water are concerned. Taking private property for private purposes within the meaning of the constitutional provision has been explained as follows:

"[I]t is not essential, in order to constitute an act of eminent domain, that the use for which the property is taken should be of a public nature, that is, a use in which the public participates, directly or indirectly, as in the case of highways, railroads, public service plants and the like. It is sufficient that the use of the particular property for the purpose proposed, is necessary to enable individual proprietors to utilize and develop the natural resources of their land, as by reclaiming wet or arid tracts, improving water power or working a mine. In such cases the public welfare is promoted by the increased prosperity which necessarily results from developing the natural resources of the country...." Lewis, Eminent Domain (3d ed.), § 1.

State ex rel. Mountain Timber Co. v. Superior Court, 77 Wash. 585, 587, 137 P. 994 (1914). The Colorado Supreme Court has similarly said that although the words "private use" appear in the state's constitution and statutes, it "is obvious that they do not mean a strictly private use; that is to say, one having no relation to the public interest. The fact that the Constitution permits private property to be taken for certain specified uses is an implied declaration that such uses are so closely connected with the public interest as to be at least quasi public...." Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529, 11 P.2d 221, 225 (1932).

In Galbraith v. Superior Court, 59 Wash. 621, 629, 110 P. 429 (1910), the court discussed this principle in the context of beneficial use of water. The court noted that article I, section 16, provides for eminent domain for certain private purposes, including ditches for agricultural purposes. Although the provision

in terms seems to give the power to take for private use, it was evidently adopted upon the theory that the public would be sufficiently benefited by the taking for such a purpose to warrant the taking; that is, though it be seemingly called a private use by these words of the constitution, it is also in effect a public use in view of the necessities of a state like ours having vast areas of arid land.

59 Wash. at 629, 110 P. 429. The court explained that the reclamation through irrigation of one small field by an individual promotes the development and adds to the taxable wealth of the state as well as reclamation *546 by irrigation of large areas. Id. at 632, 110 P. 429.

The benefit to the public which supports the exercise of the power of eminent domain for purposes of this character, is not public service, but is the development of the resources of the state, and the increase of its wealth generally, by which its citizens incidentally reap a benefit. Whether such development and increased wealth comes from the effort of a single individual, or the united efforts of many, in our opinion does not change the principal upon which this right of eminent domain rests.

Id. at 631, 110 P. 429; see also, e.g., Prescott Irrig. Co. v. Flathers, 20 Wash. 454, 458-59, 55 P. 635 (1899); White v. Stout, 72 Wash. 62, 66, 129 P. 917 (1913). The same principle was discussed by the United States Supreme Court in Clark, quoted above.

While these state cases preceding enactment of RCW 90.03.040 treat transportation of water for irrigation as sufficiently public in nature to allow condemnation for conveying the water, the statute, like the constitution, encompasses other beneficial uses. Article I, section 16 specifically refers to agricultural, domestic, or sanitary purposes. Article XXI, section 1 states that "use of the waters of this state for irrigation, mining and manufacturing purposes shall be deemed a public use." This latter provision makes the stated purposes public purposes, "but it does not preclude the state, through its legislature, from declaring other purposes to be also public in their nature." State ex rel. Andersen v. Superior Court, 119 Wash. 406, 409-10, 205 P. 1051 (1922). As noted, RCW 90.03.040 declares that the beneficial use of water is a public use.

At present, the vast majority of this state's citizens do not engage in agriculture. Yet the development and wealth of this state derived from nonagricultural endeavor is unquestionably dependent upon beneficial use of water, including domestic use of water.^[5] Our state's citizens must have use of water, not merely for economic development of their own land, but also that they can live and work throughout the state in a wide variety of occupations. We live, more than ever, in a time of limited water resources and expanding growth. Application of water to beneficial use, as contemplated by our water codes, is a crucial factor in sustaining this state and its people.

The legislative declaration in RCW 90.03.040 that beneficial use of water is a public use must also be viewed in light of other language in article I, section 16, which states that "[w]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public." This does not mean, however, that the Legislature cannot declare public uses. State ex rel. Andersen, 119 Wash. at 410, 205 P. 1051. "The Legislature can declare in the first instance that the purpose is a public one, and it remains the duty of the court to disregard such assertion if the court finds it to be unfounded." Id. A legislative declaration will be accorded great weight. Port of Seattle v. Isernio, 72 Wash.2d 932, 936, 435 P.2d 991 (1967); Miller v. City of Tacoma, 61 Wash.2d 374, 383-84, 378 P.2d 464 (1963).

The Legislature's declaration that beneficial use of water is a public use is not unfounded. We turn again to the historical context. As noted, the prior appropriation doctrine developed in recognition of the value and scarcity of water in western states. Indeed, the importance of beneficial use of water led to the decline of the riparian system in this state:

Strict application of the riparian rights doctrine led to problems. The riparian rights doctrine prevented appropriative or riparian development by others, even if the *547 riparian rights had never been exercised. As population density increased, demand for water grew and the vitality of the riparian doctrine began to wane. See Trelease, Coordination of Riparian and Appropriative Rights to the Use of Water, 33 Tex. L.Rev. 24, 25-26 (1954).

Dep't of Ecology v. Abbott, 103 Wash.2d 686, 691, 694 P.2d 1071 (1985). Thus, condemnation of riparian rights was upheld in early cases. For example, in 1907 this court upheld an 1890 statute that authorized condemnation of riparian rights for irrigation, subject to the riparian's irrigation needs. Id. (citing State ex rel. Kettle Falls Power & Irrig. Co. v. Superior Court, 46 Wash. 500, 90 P. 650 (1907)); see also State ex rel. Liberty Lake Irrig. Co. v. Superior Court, 47 Wash. 310, 313-14, 91 P. 968 (1907) ("[i]f [the riparian] is not using the water and does not propose to use it as soon as practicable in the ordinary and reasonable development or cultivation of his lands, then there is no reason why the water should be withheld from others who need and will promptly use it if permitted").

RCW 90.03.040 allows, among other things, condemnation of a water right for a proposed superior use. Shortly after the statute's enactment in 1917, the court held that a nonriparian owner could condemn a riparian's right, where the nonriparian sought immediate use for power while the riparian intended future use. State ex rel. South Fork Log-Driving Co. v. Superior Court, 102 Wash. 460, 470, 173 P. 192 (1918).

Appropriative rights thus played an early and vital role in this state's water law, and, with erosion of the riparian rights doctrine, have become the dominant form of water rights in this state. This evolution occurred because of the enormous importance, given the limited availability of water, of actual beneficial use of water to develop land, and rejection of speculative interests. See, e.g., State ex rel. Liberty Lake Irrig. Co., 47 Wash. at 313-14, 91 P. 968. The importance of water in this state simply cannot be overstated.

We conclude that the Legislature's declaration that beneficial uses are public uses, coinciding with its choice of prior appropriation as the sole basis for acquisition of new water rights in this state in 1917, is entitled to deference.

Our conclusion accords with the laws of other western states that provide that condemnation of any property or rights necessary to apply water to beneficial use is a condemnation for a public use. The Idaho State Constitution provides that

[t]he necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for the rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose ... is hereby declared to be a public use....

Private property may be taken for public use [provided just compensation is paid]....

Idaho Const. art. I, § 14.

COLO.REV.STAT. § 37-86-102 provides that "[a]ny person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right." The Colorado Supreme Court held in In re Application for Water Rights of Bubb, 200 Colo. 21, 610 P.2d 1343 (1980) that the owner of a conditional water right was authorized to condemn a right of way to transport water for beneficial uses. The court noted that the ultimate sources of the state statute were Colo. Const. art. II, § 14 and Colo. Const. art. XVI, § 7. The first of these constitutional provisions provides that private property shall not be taken for private use without the consent of the owner, "except for private ways of necessity, and except for reservoirs, drains, flumes or ditches on or across the lands of others, for agricultural, mining, milling, domestic or sanitary purposes." Colo. Const. art. II, § 14. The second provides for rights of ways across public, private and corporate lands for transportation of water for domestic purposes, irrigation, mining and manufacturing and drainage, upon payment of just compensation.

*548 In Kaiser Steel Corp. v. W.S. Ranch Co., 81 N.M. 414, 467 P.2d 986 (1970), the court examined state constitutional and statutory law governing condemnation of rights of way to transport water. The court noted that N.M. STAT. ANN. § 75-1-3 provides a right in "`any person, firm, association or corporation' "to condemn land for a right of way for "`construction, maintenance and operation'" of "`canals, ditches ... pipelines or other works for the storage or conveyance of water for beneficial uses....'" Kaiser Steel, 467 P.2d at 988 (quoting statute). The court observed that the state constitution allows condemnation only for public uses. Id. The court then described the state's history of water rights, noting that the prior appropriation system had been adopted given that "[w]ater conservation and preservation is of utmost importance. Its utilization for maximum benefits is a requirement second to none, not only for progress, but for survival." Id. at 989. The court held that it was not the ultimate use of the water that controlled the issue of public use, but rather beneficial use of the water. Id. at 991.

Significantly, the court said that while it had held that irrigation uses were public uses in earlier cases, "[w]e do not suppose for a moment that it is the use for growing crops or producing food that has moved this Court to hold as it has concerning irrigation as a public use. Rather, it must have been the fact of beneficial use of water which unquestionably is of the greatest importance to this state, that dictated the result." Id. The court said that "[i]n view of our state's environmental situation, the distribution of water is of paramount importance, justifying the defining of such distribution as a `public use.'" Id. at 993.

The same is true in Washington. Where water is limited, where water rights do not depend upon riparian access to water, and where application of water to beneficial use is required to hold a water right, distribution of water is imperative and so is the ability to acquire a way to convey the water to its place of use.

The Del Rosarios complain, though, that if obtaining a certificated water right is all that is necessary to justify exercise of the power of eminent domain under RCW 90.03.040, then the Department of Ecology determines property rights issues which it has no right to determine.

One seeking a water right in this state must apply for a permit, which may be issued only if the Department finds (1) that water is available, (2) for a beneficial use, and that (3) an appropriation will not impair existing rights, or (4) be detrimental to the public welfare. RCW 90.03.290. (Appropriations of groundwater must comply with surface water code provisions, RCW 90.03.250 to .340, which are expressly incorporated into the groundwater code. RCW 90.44.060.) A permit, and ultimately a water right certificate, may be obtained only where water is applied to beneficial use. "The principle that water must be used for a beneficial purpose is a fundamental tenet of the philosophy of water law in the West." Department of Ecology v. Acquavella, 131 Wash.2d 746, 755, 935 P.2d 595 (1997). "`An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land.'" Dep't of Ecology v. Grimes, 121 Wash.2d 459, 468, 852 P.2d 1044 (1993) (quoting Neubert v. Yakima-Tieton Irrig. Dist., 117 Wash.2d 232, 237, 814 P.2d 199 (1991)). Perfection of an appropriative right requires that appropriation is complete only when the water is actually applied to a beneficial use. See, e.g., Ellis v. Pomeroy Improvement Co., 1 Wash. 572, 21 P. 27 (1889).^[6]

The Department must, in reaching a decision on a water right application, consider beneficial use and the public welfare, as well as whether the proposed use would be consistent with the highest feasible use of the water and with achieving the maximum net *549 benefits to the people of the state, see RCW 90.03.290 and RCW 90.54.020(2).

The Legislature has delegated to the Department the authority to issue water rights in compliance with the relevant statutes. The Department, in issuing a water right, makes no determination of any interests in land, but instead carries out its delegated duties, as indeed it must.

As a separate matter, the Legislature has also declared that beneficial uses are public uses for purposes of eminent domain. Whether the power of eminent domain may be exercised is a constitutional and statutory issue legally distinct from the Department's acts in issuing water rights.

Crescent Harbor Water Co. v. Lyseng, 51 Wash.App. 337, 340, 753 P.2d 555 (1988), relied upon by the Del Rosarios, actually supports our analysis. In Crescent Harbor, the question was whether a corporation organized to own and maintain an existing water supply system had acquired a prescriptive, easement over Lyseng's property. Lyseng argued that the corporation had failed to allege compliance with provisions of the water code, had failed to join as a necessary party under the code, and had failed to exhaust administrative remedies under water rights statutes. The Court of Appeals rejected these arguments on the ground that a determination of a water right is a different legal matter from the determination whether a prescriptive easement was acquired. Crescent Harbor Water Co., 51 Wash.App. at 340, 753 P.2d 555. As the court correctly said, and as is true here, the Department has no authority to adjudicate private property rights. Id.

Our discussion of the public use question sets the stage for discussion of the necessity question. RCW 90.03.040 provides that the right of eminent domain may be exercised by any person "to acquire any property ... when found necessary for ... the application of water to[ ] any beneficial use." (Emphasis added.) "The word `necessary,' when used in or in connection with eminent domain statutes, means reasonable necessity, under the circumstances of the particular case." City of Tacoma v. Welcker, 65 Wash.2d 677, 683-84, 399 P.2d 330 (1965) (citing State ex rel. Lange v. Superior Court, 61 Wash.2d 153, 377 P.2d 425 (1963)).

However, rather than determining whether the Hallauers established that a right of way across the Del Rosarios' land was necessary in order to put water from the spring to beneficial use, as RCW 90.03.040 directs, the Court of Appeals applied RCW 8.24.010. That court read RCW 8.24.010 as providing that an easement for transporting water may be condemned only where the land on which the water is to be used is landlocked: "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" is authorized to condemn such an easement. RCW 8.24.010.^[7] The court reasoned that the Hallauers must show both a public use and reasonable necessity, and they had failed to show the latter because the Hallauers' property is not landlocked, other forms of energy are available to heat and cool their home, and alternate sources of water are available.

This analysis overlooks the fact that RCW 90.03.040 does more than declare that beneficial use of water is a public use. The statute also provides that any person can condemn a right of way to transport water where necessary to apply the water to beneficial use. RCW 90.03.040; State ex rel. Lincoln v. Superior Court, 111 Wash. 615, 191 P. 805 *550 (1920) (Laws of 1917, § 4 at 448 permits condemnation of ditch by one of its owners and cotenants for carrying additional water from another source to its lands); State ex rel. Gibson v. Superior Court, 147 Wash. 520, 266 P. 198 (1928) (RCW 90.03.040 and Const. art. I, § 16 provide for the right of condemnation of rights of way to transport water over the lands of another for domestic and irrigation purposes). Thus, in marked contrast to RCW 8.24.010, RCW 90.03.040 does not require necessity based upon the landlocked nature of the condemnor's property, but expressly states the relevant necessity as "necessary for the storage of water for, or the application of water to, any beneficial use." (Emphasis added.)

We recognize that the Court of Appeals analysis is supported by State ex rel. Henry v. Superior Court, 155 Wash. 370, 284 P. 788 (1930). There, the court reasoned that Laws of 1917, ch. 117 is in pari materia with Laws of 1913, ch. 133, which include what is now RCW 8.24.010. 155 Wash. at 374-75, 284 P. 788. The court read the two statutes together, and concluded that the same analysis applies as to condemnation of rights of way for transporting water as applies to condemnation of property for a logging railroad easement.