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AGO 1956 No. 297 - July 12, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

CITIES AND TOWNS ‑- CITY STREETS ‑- EASEMENTS ‑- POWER OF CITY TO GRANT IN PROPERTY DEVOTED TO PUBLIC USE ‑- RIGHTS OF ABUTTING OWNERS IN CITY STREETS ‑- RIGHT OF ACCESS OF OWNERS OF LANDLOCKED PROPERTY IN CITY STREETS

A city of the third class may not grant an easement to a private person over a city street, road or park drive, currently devoted to public use, for purposes of a private driveway.

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                                                                    July 12, 1956

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 297


Attention:  !ttA. E. Hankins, Chief Examiner

            Division of Municipal Corporations

Dear Sir:

            We are in receipt of your letter requesting the opinion of this office on a certain question which we paraphrase as follows:

            May a city of the third class grant an easement to a private person over a city street, road or park drive, currently devoted to public use, for purposes of a private driveway?

            We answer your question in the negative.

                                                                     ANALYSIS

            Property of a municipal corporation devoted to a public use may not be disposed of by the corporation.  Commercial Waterway District No. 1 of King County v. King County, 200 Wash. 538.  The word "street" is a generic term and includes all urban ways which can be and are generally used for the ordinary purpose of travel.  10 McQuillin on  [[Orig. Op. Page 2]] Municipal Corporations (3rd Ed.), 524, § 30.03.  Unless abandoned or vacated, streets are held in trust for the public and without legislative authority cannot be alienated or otherwise disposed of.  State v. Superior Court of Jefferson County, 91 Wash. 454.

            In the instant case the city street is currently devoted to public use.  We are not aware of any statute which would authorize a third class city to grant such an easement in its streets.  Therefore, on the basis of the authority we have cited, we do not feel that a third class city can convey an easement in one of its streets for the purpose of a private driveway.

            However, it may well be that if this street is the only access road which this private property owner has to the main public ways, he has, as a matter of law, a sufficient property interest in this city street to prevent it from being permanently vacated or closed, except by the exercise of eminent domain.  Smith v. Centralia, 55 Wash. 573; State ex rel. Moline v. Driscoll, 185 Wash. 229.

            We conclude that a city of the third class may not grant an easement to a private person over a city street, road or park drive, currently devoted to public use, for purposes of a private driveway.

            We hope this opinion will be of service to you.

Very truly yours,

DON EASTVOLD
Attorney General


DUANE S. RADLIFF
Assistant Attorney General

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