dissenting.
If the majority is correct, even a landowner whose only means of access to his landlocked property runs along an easement covered by quicksand is not entitled to a way of necessity. I dissent, because the majority’s unnecessarily narrow construction of ways of necessity law works in this case to defeat the basic purpose of the statute.
According to the majority, the existence of any enforceable access, even if it is unusable, bars an owner of landlocked land from obtaining a way of necessity. That must be true, it contends, because (1) the legislature sought to eliminate mere convenience as a justification for obtaining a way of necessity; (2) the legislature intended to eliminate “justice” as a basis for granting a way; and (3) the statute requires petitioning landowners to establish that they do not have and *128cannot obtain an “easement for access” to a public road. 100 Or App 120,127.
None of those reasons supports the majority’s conclusion. First, the purpose of granting ways of necessity is “to provide motor vehicles access from a public road to land that would otherwise have no motor vehicle access.” ORS 376.150(2). (Emphasis supplied.) Given that purpose, it is reasonable to infer that the legislature intended “access” to mean “reasonable access.” Indeed, in Witten v. Murphy, 71 Or App 511, 516, 692 P2d 715 (1984), rev den 298 Or 773 (1985) (quoting Holland et al v. Grant County et al, 208 Or 50, 54, 298 P2d 832 (1956)), we said that “easement of access” in ORS 376.180(8) and (9) “implies a reasonable right of ingress and egress from and to the highway from the property * * *.” (Emphasis supplied.) Moreover, under ORS 376.160, the county governing body must direct county officials to prepare a written report that includes “[t]he reasonableness of the way of necessity proposed in the petition.” ORS 376.160(2)(c). (Emphasis supplied.) Thus, unless an easement provides reasonable access to a public road, its existence should not bar a landowner from obtaining a way of necessity.
The majority is also mistaken in its assertion that the legislature intended to remove what is “just” as a basis for granting a way. In testimony before the Senate Local Government Committee, Jack Sollis, of the Department of Transportation, stated:
“I would like to call your attention now to the provisions in subsection 3 of ORS 376.115 which provides that ‘if the court is satisfied that the establishment of the access is just, the court shall declare the road or gateway to be a public road or perpetual right of way and shall issue and cause to be recorded an order establishing a road or right of way after the petitioner pays:’ There is no requirement that the court make a determination as to just compensation for the land taken. Again I believe that this poses a serious constitutional question.” (Emphasis supplied.)
That testimony indicates that the legislature eliminated the language in question because of its concern with just compensation, not because of a desire to eliminate the concept of what is “just” as a basis for obtaining a way.
Clearly, the legislature disapproved of granting a way *129of necessity for mere convenience. That cannot be equated, however, with an intent to withhold the entitlement from landowners who have a legal easement right, yet lack access to their property because the easement is unusable. To the contrary, in a memorandum presented to the Senate Local Government Committee, Mark Westling, of the University of Oregon Bureau of Governmental Research and Service, presented the committee with two alternatives: (1) abolish ways of necessity altogether, or (2) retain them as a limited type of public road used to provide access to the land of the applicant. He suggested that the second alternative was better because, among other things, “[i]t retains the right to access when such access is necessary and promotes the purposes for which ways of necessity were originally established.” Senate Local Government Committee, April 4,1979, exhibit D, p. 3. (Emphasis supplied.) By retaining ways of necessity, the legislature expressed a clear intent to provide access whenever necessary, i.e., reasonable access.
In this case, petitioners introduced evidence to prove that using their easement would require reconstructing a bridge that would cost $106,000, more than their land is worth, and that building it would be inappropriate at any cost because of environmental factors.1 Given those circumstances, granting them a way of necessity is not a question of their convenience, but of providing motor vehicle access to their otherwise landlocked property. In my view, petitioners *130are clearly entitled to a way of necessity. Given that the circuit court properly granted them one, the issue to be resolved is whether it exceeded its authority under ORS 376.150 et seq by limiting usage to that necessary for petitioners’ farm and family and by prohibiting use by any future owners of partitioned or subdivided portions of petitioners’ land.
I would hold that it did. In Chapman v. Perron, 69 Or App 445, 448, 685 P2d 492 (1984), we considered whether ORS 376.150 to ORS 376.200 authorize the creation of a private road. We held that, because construing those statutes to do so would authorize a taking of property for private use in violation of Article I, section 18, of the Oregon Constitution, a way of necessity must be open to the public. 69 Or App at 449; see also Barkley et ux. v. Gibbs, 180 Or 647, 650, 178 P2d 918 (1947); Towns v. Klamath County, 33 Or 225, 232, 53 P 604 (1898); Schoeneman v. Meyer, 78 Or App 89, 92, 715 P2d 100, rev den 301 Or 165 (1986); Aylett v. Mardis, 59 Or App 109, 113, 650 P2d 165, rev den 294 Or 212 (1982).
The circuit’s court’s restrictions on usage violated that requirement. In Aylett v. Mardis, supra, an owner of a landlocked parcel obtained a statutory way of necessity across the plaintiffs’ land and later subdivided, selling the resulting five-acre lots to the defendants. The plaintiffs successfully sought an injunction denying the defendants use of the way, and the defendants appealed. We reversed, holding that, because a statutory way of necessity must be open to the public and because the statute contemplated using a way for access to residences, the defendants were entitled to use it for that purpose. 59 Or App at 116. Similarly, in Schoeneman v. Meyer, supra, we held that, because a statutory way of necessity is a public way, the defendants whose landlocked property was served by a gateway2 were entitled to expand its use to serve additional residences to be constructed on their subdivided property. Although Aylett and Schoeneman dealt with statutory ways of necessity established pursuant to former ORS 376.105 et seq (repealed by Or Laws 1979, ch 862, § 12), the reasoning in those cases also applies to the current statutory scheme. Limiting the use of a way of necessity to petitioners’ personal use and restricting future use of the way *131arising from subsequent partitions of petitioners’ land would effectively make private what must be public. It follows that the circuit court erred in imposing those limitations.
Objectos point out that, unlike former ORS 376.105 et seq, the present statutes require that the order granting a way of necessity “[describe those uses that are permitted on any way of necessity established[.]” ORS 376.175. Additionally, ORS 376.180 requires that a way:
“(4) Be established only for uses in connection with the property for which the way of necessity is sought;
“(5) Not be subject to any use that is not described in the order establishing the way of necessity!.]”
They argue that those provisions permit or require the type of restrictions that the circuit court imposed.
The legislative history indicates, however, that those provisions were not intended to permit such restrictions but, rather, to prevent the creation of new “public roads” that would not meet public road standards or that would permit partitioning land without compliance with subdivision or “major partitioning” regulations.3 Partition laws in effect before the 1979 revision required review and approval of public roads only for “major partitions,” defined by ORS 92.010(2) as partitions involving “the creation of a road or a street.” (Emphasis supplied.) Thus, review and approval under ORS 92.090 could be circumvented by obtaining a statutory way of necessity to the tract to be partitioned. To avoid that result, the 1979 legislature first created a limited category of public ways to provide “motor vehicle access from a public *132road,” as defined by ORS 376.150(1),4 to an applicant’s “land that would otherwise have no motor vehicle access.” ORS 376.150(2). It then subjected all future partitions served by a way of necessity established under ORS 376.150 et seq to independent approval by the local governing body having partitioning authority. ORS 376.195.5
In establishing a way of necessity, a county court must describe the public uses that are permitted on a way, limiting them to ones connected with the landlocked property. However, it is not authorized to impose restrictions on the future use of the way to serve subsequent partitions of petitioners’ land. Petitioners have satisfied the statutory criteria for establishing a way of necessity. Approval or disapproval of the uses to which they put their land in the future is a matter for local land use authorities.6 ORS 376.195.
Finally, I have the distinct impression that the majority’s narrow construction of Oregon’s law on ways of necessity stems from its distaste for permitting private individuals to institute what amount to eminent domain proceedings. However, the legislature has decided that such actions serve important public, as well as private, purposes. It appears to me that the majority is effectively playing a legislative role. Because that is not our proper function, I respectfully dissent.
Objectors’ expert, Benton, owner-operator of Harney County Gypsum, testified that he could build the bridge for $23,500. However, he also testified that he does not design the bridges that he builds, but relies on engineers to design them and to “figure out all the soils type [sic] * * * the topography * * * the materials to use.” He stated that he had not studied the floodplain issue before making his estimate and that he would want an engineer to design the project before he did anything.
Petitioners’ expert, Anderson, is a licensed engineer. He testified:
“You shouldn’t build anything at that site. It unnecessarily obstructs the floodplain. And, I guess, strictly from an engineering standpoint, if something is constructed there to obstruct the floodway, such as a bridge, it’s still going to be in the way during the 100-year flood through that site.”
He also stated:
“This bridge might be laying in somebody’s front yard in 25 years if I designed a 25-year bridge for a 25-year flood * *
He presented detailed oral and written evidence analyzing applicable restraints at the site and broke down the costs of building a bridge that would withstand the 100-year flow. Given the relative qualifications of the two experts, on de novo review we should adopt petitioners’ estimate regarding the cost of constructing an adequate bridge.
A gateway is a statutory way of necessity that does not exceed 30 feet in width. Schoeneman v. Meyer, supra, 78 Or App at 91 n 2.
As explained to the Senate Local Government Committee in a memorandum of the Bureau of Governmental Research and Service, the existing statutes (former ORS 376.105 et seq) for establishing ways of necessity created “a loophole which permits land use abuse”:
“[T]he present unqualified ‘right’ to establish a ‘public road’ leaves an avenue open for the abuse and circumvention of local and state land use law. There are other procedures for establishing public roads under which the public agency can exercise appropriate discretion in protecting the public interest. These include approval of the road as part of a subdivision or major partitioning, approval of the dedication of a road right of way, and direct action of the county to purchase or condemn property for a public road.” Senate Local Government Committee, April 4,1979, exhibit D, p. 1.
ORS 376.150(1) defines a “public road” as
“the entire right of way of any road over which the public has the right of use or any right of way held by the state or a political subdivision of the state for road purposes that is not open for public use.” (Emphasis supplied.)
ORS 376.195 provides:
“Land for which a way of necessity is established under ORS 376.150 to 376.200 shall not be subsequently partitioned without the approval of the city or county governing body which has partitioning authority.”
Petitioners also argue that the trial court erred in ordering that the way of necessity be the width of the existing road, rather than 30 feet, as recommended by the county surveyor and county roadmaster. See ORS 376.160. The evidence supporting the trial court’s determination consisted of testimony from Mr. Pike that he would pass another car on that road only once every four or five months. The trial judge also personally observed the roadway. The court’s decision was based on the assumption that future use of the road would be restricted to the “current amount of use of the property.” Because that assumption was in error, and because the record is insufficient to permit us to decide whether the existing width of the roadway is adequate for public use, we should remand for reconsideration of that issue and for consideration of the amount of compensation due objectors for any additional taking that results. See ORS 376.175(2)(f).