The opinion
RAPP, C.J.,
dissenting.
{1 In my opinion, the evidence does not supply critical information necessary to establish that a judgment can be entered without regard to whether the Klintworths and the Joneses (Plaintiffs) have established a "necessity" for a private right-of-way across Ransoms' property. Moreover, I find that this insufficiency of evidence exists regardless of whether Plaintiffs are held to a showing of a "reasonable necessity" or some stricter standard.
12 The absent facts relate to the Mary Boone (Boone)-Corps of Engineers (COE) transaction in 1959, coupled with the fact that Boone had access to a public county road before that transaction. Boone "sold" all but a three-acre tract of her property to COE, apparently leaving the three acres landlocked. Clearly, the acreage "sold" was subject to condemnation. Moreover, if COE had condemned the purchased land, then the diminution in value to the remaining three acres would have been an issue because that tract then became landlocked, which is a result not viewed with favor in this State.
T3 Thus, it would seem logical that, as a part of the original Boone-COE transaction, provision would have been made to either provide access to the landlocked three acres or to include in the consideration paid by COE compensation for the now landlocked three acres. Moreover, it seems equally logical that Plaintiffs, especially the Klintworths who transacted with Boone, would have or should have informed themselves of these facts. Thus, knowledge of the facts about the Boone-COE transaction is a prerequisite to a decision that taking the Ransoms' land for a right-of-way is necessary.
T4 It is possible that neither Boone nor COE did anything about the access issue in connection with the Boone-COE transaction thereby allowing the access road to flood. Such failure would, in my view, constitute negligence. Moreover, if Plaintiffs took no action to ascertain the pertinent facts of the Boone-COE transaction, this, too, would be negligence. If inaction by either Boone or Plaintiffs is the scenario, then such requires a legal determination, initially by the trial court, as to how this negligence affects (including estoppel) Plaintiffs in their quest to obtain access over the Ransoms' property.
[ 5 In summary, I would hold that the trial court needs additional evidence relating to the Boone-COE transaction, as well as to Plaintiffs' knowledge thereof, in order to decide whether the taking of a right-of-way here is reasonable. Therefore, I would reverse the judgment and remand for an additional evidentiary hearing to address these issues, including the action taken to obtain access from COE.