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AGO 1956 No. 215 - March 01, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

TAXATION ‑- EASEMENTS ‑- SEGREGATION FOR ASSESSMENT PURPOSES.

Owners of easement may request separation from servient estate for taxation purposes and assessor must comply with request.

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                                                                   March 1, 1956

Honorable George W. Sibbald
Prosecuting Attorney
Cowlitz County
County Court House
Kelso, Washington                                                                                                              Cite as:  AGO 55-57 No. 215

 Dear Sir:

             This is in reply to your request for an opinion relating to the listing and assessment of easements for tax purposes.  Your questions may be stated as follows:

             1. May the grantee of an easement request that it be entered on the the tax roll in his name so that he may pay taxes thereon?

             2. If so, is it mandatory that the assessor so list all easements?

             Our conclusion is that question No. 1 should be answered in the affirmative and question No. 2 also in the affirmative, if a request has been made for a separate listing and assessment.

                                                                     ANALYSIS

             It has been held by our supreme court that when lands subject to an easement are sold for non-payment of taxes, the easement is extinguished by the sale and the only way the owner of an easement may protect his rights is to have the land covered by his grant segregated by the taxing officers.  Hansen v. Carr, 66 Wash. 81, 118 Pac. 927; Tamblin v. Crowley,  99 Wash. 133, 168  [[Orig. Op. Page 2]] Pac. 982; Harmon v. Gould, 1 Wn. (2d) 1, 94 P. (2d) 749.

             It was said in Hanson v. Carr,supra,

             ". . .  No doubt the defendants, prior to the foreclosure proceedings, might have had the land upon which their easement was located segregated, and a pro tanto reduction of the tax, under Rem. & Bal. Code, § 9258 . . .  But having neglected that remedy it is too late to say that the easement did not go with the land to the purchaser at the tax sale."

             The statute, upon which the court relied, is now RCW 84.56.340 which for our purposes has not been materially changed and reads in part as follows:

             "Any person desiring to pay taxes on any part of real property assessed as one parcel, or tract, may do so by applying to the county assessor, who must carefully investigate and ascertain the relative or proportionate value the part bears to the whole tract assessed, on which basis the assessment must be divided, and the assessor shall forthwith certify such proportionate value to the county treasurer. . . ."

            In Harmon v. Gould, supra, the court, referring to the Carr case, stated at page 10:

             "The court called attention to the fact that the claimants under the grant might have had the land covered by their grant segregated by the taxing authority, but that, having neglected to do this, or to pay the taxes, they had lost their opportunity to protect their rights.

            "Clearly, this must be the law.  The collection of taxes would be seriously hindered, if a taxing authority  [[Orig. Op. Page 3]] be required to examine each tract of land for possible easements based upon prescriptive or other claims not of record, concerning which it might well be exceedingly difficult to obtain information.  A person claiming any such right may protect his interest by seasonably demanding a segregation and the opportunity to pay the taxes upon the land which he claims.  Failing to do this, generally speaking, any rights which he may possess are cut off by a general tax foreclosure."

             It also appears that although the easement is recorded, if there has been no segregation, it will be extinguished upon a tax foreclosure of the servient estate.  The case ofGustaveson v. Dwyer, 78 Wash. 336, 139 Pac. 194, held that both record and possessory titles are absolutely destroyed by such foreclosures.

            It is thus our opinion that when the owner of an easement, whether it be perpetual or for some lesser term, and whether recorded or not, requests segregation, it is the duty of the assessor to comply with the request and make the assessment in the name of the owner.  The tax records concerning the servient estate should also show that it is subject to the easement.

             We are enclosing for your convenience an opinion of this office to the state tax commission dated April 2, 1952, which discusses the proper method of listing and assessing easements appurtenant.

             This opinion does not apply to easements owned by public utility companies as such are assessed under chapter 84.20 RCW.

 Very truly yours,
DON EASTVOLD
Attorney General 

HENRY W. WAGER
Assistant Attorney General

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