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AGO 1955 No. 101 - June 15, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

EMINENT DOMAIN ‑- COUNTIES ‑- CITIES AND TOWNS ‑- PARKS ‑- STREETS

(1) A county has no right of eminent domain to acquire rights-of-way for public highways within city limits.  (2) A fourth class town may dedicate a street through park property provided that the use of the land for street purposes will not be inconsistent with the use of the remaining land for park purposes.

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                                                                   June 15, 1955

Honorable Walter J. Deierlein, Jr.
Prosecuting Attorney
Skagit County
Mount Vernon, Washington                                                                                                              Cite as:  AGO 55-57 No. 101

Dear Sir:

            We have your letter concerning a proposal on the part of Skagit County to bridge the Swinomish channel between the Swinomish Indian Reservation and the town of LaConner.  Access roads to the east end of the bridge would consist of a county road, about a mile of city streets, and another segment of road through the city park where no streets exist at present.

            You advise that both LaConner and Skagit County are favorably disposed toward effectuating a workable solution to the problem of constructing and maintaining this access road.  The problem consists of that portion of the highway traversing the city park.

            The deed under which the city holds the park property contains the following recital:

            "'This conveyance is made upon the express conditions that the said land hereby conveyed is  [[Orig. Op. Page 2]] conveyed to the said grantee for park purposes and shall be used by the Town of LaConner during all times for a park and in the event of said Town failing to use said property for park purposes, and to keep and maintain it as a park, then the said land hereby conveyed shall revert back and become the property of the said grantor or her heirs, administrators or assigns.'"

            You ask our opinion on two questions: (1) Can Skagit County condemn town park property in a fourth class town for road purposes, the road to be an approach to a county bridge of the present county road system?

            (2) Can a fourth class town plat and establish a street through park property within the town to be used as the route to a county bridge?

            In our opinion, your first question must be answered in the negative; your second in the affirmative.

                                                                     ANALYSIS

            1. RCW 36.75.010 (5) provides:

            "'County road,' is established as such by resolution of the board of county commissioners and may include any public highway or part thereof,outside the limits of cities and towns which has not been designated as a primary state highway or as a secondary state highway;" (Emphasis supplied)

            RCW 36.75.030 provides for cooperation between the state and counties in road improvement and maintenance.  RCW 36.75.200 gives counties specific authority to build and maintain bridges inside city limits.  We can find no comparable provision for counties to participate in building or maintaining city streets.

             [[Orig. Op. Page 3]]

            InState ex rel. Cle Elum v. Kittitas County, 107 Wash. 326, at page 328, the court, sittingen banc, expressed the following rule:

            "* * * Property acquired by a municipality which is necessary, or may reasonably be considered necessary in the future, for the use of the municipality in the performance of either its public or private functions, is not subject to condemnation unless that power has been expressly created.  * * *"

            We have no statute authorizing counties to acquire rights-of-way for public highways within the city limits.  In view of the definition of "county road" and the rule set forth above, it seems clear that Skagit County lacks authority to assert the right of eminent domain over land within the city limits of LaConner.

            2. Your second question presents more problems.  The general rule is that a public highway cannot be laid out by a municipality upon park lands.  The term "public highway" is construed to mean a part of the street system of the municipality as distinguished from the park roads established to give the public access to the different parts of the park.  See 18 A.L.R. 1259, 63 A.L.R. 486, 144 A.L.R. 486 and the cases cited therein.

            We do not believe that the rule above stated need necessarily apply to your problem.  The key to your question is whether or not the proposed throughfare would be inconsistent with the park purposes for which the land was originally deeded to LaConner.  We are advised that to date the park property is undeveloped.  We can think of many instances in which streets traverse city parks.  Aurora Avenue accommodates considerable traffic through Woodland Park in Seattle.  Here in Olympia, Priest Point Park is divided by a city street.  There is nothing inherently inconsistent with combining a park purpose with a highway purpose.  Indeed it seems evident that a public throughfare in many cases would enhance the value and utility of a city park by making it more readily accessible to its patrons.

             [[Orig. Op. Page 4]]

            We see no insuperable legal impediment against LaConner platting the proposed street through the municipal park.  Chapter 58.16 RCW requires notice and hearing prior to dedication.  Chapter 299, Laws of 1955, (RCW 58.16.060) requires the city council of the town of LaConner to inquire into the public use and interest to be served by a proposed dedication.  One of the points of inquiry required by this section is appropriate provision for parks and playgrounds.  At this hearing it seems clear that the council could determine whether or not the dedication of a street through the park would be consistent with the use of the balance of the land as a public park.

            We are aware that inState ex rel. Northern Pacific R. R. Co. v. Superior Court, 136 Wash. 87, it was held that the City of Shelton could not grant the railroad company a franchise and right-of-way through the city park.  We believe that case is distinguishable for two reasons: (1) The Shelton park appeared to be improved and used as a park; and (2) a railroad is less compatible with a municipal park than a boulevard.

            This leaves us with the problem posed by the recital in the deed.  Will the dedication of a street through this property which was dedicated "for park purposes" work a reverter?  This will depend upon a judicial evaluation of the intention of the grantor at the time she executed the conveyance.  This is always a dangerous area in which to be dogmatic.  We note that the recital does not say "exclusively for park purposes."  It is our best estimate that if the plan is such that the land remaining can be developed into a commendable municipal park, that the courts would be reluctant to find a condition broken to support a reverter.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY G. ENGEBRETSEN
Assistant Attorney General

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