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AGO 1964 No. 133 - December 30, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COUNTIES ‑- ROADS ‑- EASEMENTS ‑- TAX SALE OF PROPERTY ‑- COUNTY EASEMENT RESERVED.

A county may reserve county road easements over tax title property which it proposes to sell provided that the right to the easement is first acquired under the county's power of eminent domain or by purchase pursuant to RCW 84.64.320.

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                                                               December 30, 1964

Honorable James P. McNally
Prosecuting Attorney
Pend Oreille County
Newport, Washington

                                                                                                              Cite as:  AGO 63-64 No. 133

Dear Sir:

            By letter previously acknowledged you have asked whether a county may reserve county road easements over tax title property it proposes to sell.

            In our opinion it may, provided that the right to the easement is first acquired under the county's power of eminent domain or by purchase pursuant to RCW 84.64.320.

                                                                     ANALYSIS

            It is well-established in our state that a county which purchases land at a general tax sale, for want of other purchasers, takes title in trust for the state and the various taxing bodies entitled to tax revenue from the lands.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938).  A county therefore may not devote tax title property to public use in the same way that it can devote its proprietary lands to public use.  Commercial Waterway Dist. No. 1 v. King County, 10 Wn. (2d) 474, 117 P. (2d) 189 (1941).

            Generally speaking there are two methods whereby a county can acquire the right to devote tax title property to public use.

            The first method is by exercise of the county's right of eminent domain.  Tax title property may be condemned by a county for public purposes.  AGO 43-44 p. 133 (1943) [[to Prosecuting Attorney, Lewis County on September 2, 1943]].  Such property may, therefore, be condemned for county road purposes.  RCW 36.85.010.

             [[Orig. Op. Page 2]]

            The second method whereby a county can acquire the right to devote tax title property to public use is statutory. RCW 84.64.320 expressly authorizes the sale of tax title property "to any governmental agency for public purposes by private negotiation."  We have in the past concluded that a county is a "governmental agency" within the meaning of the act.  Opinion to Ferry county prosecuting attorney, January 9, 1948 [[1947-48 OAG 77a]].  We have also concluded in the past that a sale may be made of an interest less than a fee, such as an easement.  OAG 51-53-159 (1951) [[Opinion No. 51-53-159 to Prosecuting Attorney, Pend Oreille County on October 31, 1951]].  We adhere to those rulings now.

            Under each of the methods we have given, the action is consistent with the pre‑existing [[preexisting]]trust because the beneficiaries of the trust receive compensation for their interest in the trust property.  We conclude, therefore, that the board of county commissioners has the authority to reserve county road easements over tax title property it proposes to sell, provided the county exercises such right through its power of eminent domain or by purchase under the provisions of RCW 84.64.320, supra.

            We trust that the foregoing information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HAROLD T. HARTINGER
Assistant Attorney General

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