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AGO 1961 No. 43 - June 28, 1961
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John J. O'Connell | 1957-1968 | Attorney General of Washington

DISTRICTS ‑- FIRE PROTECTION ‑- AUTHORITY TO PURCHASE BUILDINGS AND REAL ESTATE WITHIN A FOURTH-CLASS MUNICIPALITY FOR FIRE STATION

A fire protection district which completely surrounds a fourth-class municipality which has by chapter 237, Laws of 1959, been withdrawn from the fire protection district may expend money for the purchase of buildings and real estate within such fourth-class municipality to be used for a fire station.

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                                                                   June 28, 1961

Honorable Ray E. Munson
Prosecuting Attorney
Yakima County
County Court House
Yakima, Washington

                                                                                                                Cite as:  AGO 61-62 No. 43

Dear Sir:

            By letter previously acknowledged you have requested our opinion on the following question:

            "Is it proper for a fire protection district which completely surrounds a fourth-class municipality, which has, by the Laws of 1959, chapter 237, been withdrawn from such fire protection district, to expend money for the purchase of buildings and real estate within such fourth-class municipality to be used for a fire station?"

            We answer your question in the affirmative, for the reasons set forth in our analysis.

                                                                     ANALYSIS

            By way of background you have informed us that prior to January 1, 1960, the Town of Naches, Washington, a fourth-class city, was a part of Yakima County Fire Protection District No. 3, which also included unincorporated territory on all sides of the town.  On the aforesaid January 1, 1960, the town was withdrawn from the fire protection district pursuant to § 6, chapter 237, Laws of 1959 (cf. RCW 52.22.030) providing as follows:

            "Effective January 1, 1960, every city or town, or portion thereof, which is situated within the boundaries of a fire protection district shall become  [[Orig. Op. Page 2]] automatically removed from such fire protection district, and no fire protection district shall thereafter include any city or town, or portion thereof, within its boundaries."

            Your question is whether this fire protection district, which now completely surrounds the Town of Naches but includes no territory within the corporate limits of this town, may nevertheless purchase real estate and a building situated within the town for the purpose of developing a fire station to serve the entire district.

            At the outset, some note should be made of our recent opinion (AGO 59-60 No. 82) to the Honorable Donald H. Webster, Director, Bureau of Governmental Research and Services, dated November 6, 1959 (a copy of which is enclosed).  In this opinion we concluded that in the case of a city or town removed from a fire protection district under the above quoted statute, "title to the property [of the fire protection district] within the boundaries of the municipality which is withdrawn from the fire district, will vest in the municipality excluded from such fire protection district."  Our conclusion was not based upon any statute, for we found nothing expressed in either chapter 237, Laws of 1959, supra, or in any other statute which was determinative of the issue.  Rather, our conclusion was reached through application of the common-law rule (to be applied in the absence of a determinative statute, pursuant to RCW 4.04.010) that whenever a new and different municipal corporation is created out of a portion of an existing municipal corporation, the public (municipal) property falling within the limits of the new municipal corporation will belong to this new municipal corporation.  Town of Cassian v. Town of Nokomis, 254 Wis. 94, 35 N.W. (2d) 408, 410 (1948);City of Wellington v. Township of Wellington, 46 Kan. 213, 26 Pac. 415 (1891).

            This opinion, of course, is not determinative of the instant question.  There we were concerned with the effect of a withdrawal of a city or town from a fire protection district (pursuant to § 6, chapter 237, Laws of 1959) upon the ownership of an existing fire protection district fire station located within the limits of the withdrawing city or town.  Here, on the other hand, we are basically concerned with whether, after such a withdrawal, a fire protection district may then acquire property which is located within the withdrawn city or town (and thus, perforce, is located without the territorial limits of the fire protection district).

            The basic issue of the authority of a municipal corporation to acquire property located outside of its territorial limits was considered by this office in an opinion (AGO 55-57 No. 261) to the Honorable Pearl A. Wanamaker, Superintendent of Public Instruction, dated May 3, 1956 (a copy of which is enclosed).  Your special attention  [[Orig. Op. Page 3]] is invited to page 2 of this opinion, on which we quoted with approval from 63 C.J.S. 502, Municipal Corporations, § 952 as follows:

            "It has been announced as a general rule that a municipal corporation has no power to purchase and hold land beyond its territorial limits, unless the power has been specially conferred on it by the legislature; and such power is not necessarily conferred by a general grant of power to purchase, hold, and convey such property, real and personal, as may be necessary for its public uses and purposes. . . ."

            The question, then, is whether the legislature has in fact specifically conferred upon this particular class of municipal corporations (beyond doubt fire protection districts constitute a class of municipal corporations ‑ see RCW 52.08.010) the power to purchase and hold land outside of their territorial limits.

            The authority of a fire protection district to own and acquire property is derived from RCW 52.08.020 ‑ 52.08.040, which read, in so far as is material, as follows:

            RCW 52.08.020:

            "Such fire protection districts shall have full authority to carry out the objects of their creation and to that end are authorized to acquire, purchase, hold, lease, manage, occupy and sell real and personal property, or any interest therein, . . ."

            RCW 52.08.030:

            "Any fire protection district organized under this act shall have authority:

            ". . .

            "(2) To lease, own, maintain and operate real property, improvements and fixtures thereon suitable and convenient for housing, repairing and caring for fire fighting equipment;"

            RCW 52.08.040:

            "The taking and damaging of property or rights therein or thereto by any such fire protection district to carry out any of the purposes of its organization are hereby declared to be for a public use and any such district organized under this act shall have and may exercise the  [[Orig. Op. Page 4]] power of eminent domain to acquire any property or rights therein or thereto either inside or outside the district, for the use of such district.  Any such district exercising the power of eminent domain shall proceed in the name of the district in the manner provided by law for the appropriation of real property or of rights therein or thereto, by private corporations."  (Emphasis supplied.)

            Thus, it is to be seen that fire protection districts are expressly authorized to acquire property for fire station purposes (including the housing, repairing and caring for fire fighting equipment) by purchase, lease, or condemnation.  And, in the case of condemnation, the power to acquire extraterritorial property has been specifically granted.  Therefore, there can be no question but that in the instant matter the fire protection district here in question could acquire by condemnation the particular property, located without its corporate limits, which it desires to acquire for fire station purposes.  Nothing contained in chapter 237, Laws of 1959, supra, withdrawing the Town of Naches from the corporate limits of the fire protection district would, in our opinion, preclude this course of action.

            But does this mean that such acquisition is possible only through formal condemnation proceedings?  We think not.  It is generally recognized that a condemnation, through the exercise of an expressly granted power of eminent domain, is in reality simply an enforced sale, the condemner standing toward the owner as a buyer toward a seller.  Jones v. Oklahoma City, 192 Okla. 470, 137 P. (2d) 233 (1941); Brazos River Conservation and Reclamation District v. Adkisson, 173 S.W. (2d) 294 (Texas) (1943).  And further, as was pointed out in a well-reasoned opinion of the supreme court of Indiana inLeeds v. City of Richmond, 102 Ind. 372, 1 N.E. 711 (1885), unless the legislature has clearly made condemnation the exclusive method of acquiring particular property, a municipal corporation having the power of eminent domain may also acquire the same property by a voluntary purchase.  On this point, the court (at page 378), made the following pertinent observation:

            "We can see no just reason for compelling a municipal corporation to resort to legal proceedings to secure an interest in land which the owner is willing to cede to it by contract.  Nor is there any valid reason for subjecting a property-owner to the expense and annoyance of litigation when he desires to make terms with the party who seeks his property and offers an amicable settlement by mutual agreement.  The law favors methods that prevent litigation, and sound public policy requires that contracts which secure all that litigation could accomplish shall be respected and sustained. . . ."

             [[Orig. Op. Page 5]]

            Therefore, we conclude that a fire protection district, vested with the power of eminent domain "to acquire property or rights therein or thereto, either inside or outside the district, for the use of such district," may acquire property for use as a fire station which is located outside of the corporate limits of the district (including property located within a town which has been withdrawn from the corporate limits of the district pursuant to chapter 237, Laws of 1959,supra), either by formal condemnation proceedings or by a voluntary purchase.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

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