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AGO 1958 No. 182 - April 21, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

TELEPHONE ‑- REIMBURSEMENT FOR RELOCATION OF TELEPHONE CABLES.

ELECTRICITY ‑- REIMBURSEMENT FOR RELOCATION OF ELECTRICAL CABLES.

The Washington Toll Bridge Authority is not legally authorized to reimburse a public utility for the cost of relocating its submarine telephone and power cables on the bed of Hood Canal where the utility has not been granted a right-of-way or other authorization by the state.

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                                                                   April 21, 1958

Washington Toll Bridge Authority
Transportation Building
Olympia, Washington                                                                                                Cite as:  AGO 57-58 No. 182

Attention:  !ttMr. D. B. Hedges
                      Executive Secretary

Gentlemen:

            You have requested an official Attorney General's opinion on the following question:

            Must the Washington State Toll Bridge Authority reimburse a public utility for the cost of relocating its submarine telephone and power cables on the bed of Hood Canal in view of the fact that the public utility company has not been granted a right-of-way or other authorization from the state to maintain its cables at their present location?

            Our answer is that the Washington State Toll Bridge Authority isnot required to reimburse the public utility company for its relocation costs.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            We understand from your letter that a public utility company maintains submarine telephone and power cables on the bed of Hood Canal in the area where the new floating bridge will be constructed, that is between Salsbury Point on the east and Termination Point on the west.  The design of this bridge requires that anchors and cables be affixed to the floor of Hood Canal.  The sinking of these bridge cables will subject the telephone and power cables to damage and consequently require their relocation outside of the construction area.

            By virtue of Chapter 172, §§ 11-12, Laws of 1957, amending RCW 47.16.190 and RCW 47.20.380 respectively, this new Hood Canal Bridge will become an integral part of Secondary State Highway No. 9-E on the west and Primary State Highway No. 21 on the east.  Thus the new bridge will be part of the state highway network.  A bridge is an integral part of the highway along which it is erected.  State v. Vantage Bridge Co., 134 Wash. 568; Berglund v. Spokane County, 4 Wn. (2d) 309; Lucas v. Phillips, 34 Wn. (2d) 591.

            The bed of Hood Canal upon which the anchors and cables of the new bridge will be affixed, and over which the new bridge will cross, is part of the public lands owned by the State of Washington.  In Article XVII of the State Constitution, state ownership of the beds and shores of all navigable waters in the state up to the line of ordinary high tide is asserted.  This state ownership is not bounded by the line of ordinary low tide.  State ex rel. McKenzie v. Forrest, 11 Wash. 227.  The Supreme Court of the United States has recognized that the several states own the lands under inland waters within their state boundaries.  Pollard v. Hagan, 3 How. (U.S.) 212, 11 L.Ed. 565.  Congress in providing rules of navigation for inland waters has long regarded Hood Canal as inland waters.  Act of February 19, 1895, C. 102, § 2, 28 Stat. 672, 33 U.S.C.A., § 301 (1928).

            The legislature in RCW 47.56.100 provided rights-of-way across public lands for bridges.  To obtain such rights-of-way the State Highway Commission, pursuant to RCW 47.12.020, files a map in the office of the commissioner of public lands setting forth the location of the lands across which the bridge will be built.  Thereafter the land is reserved for state highway purposes.  Before the highway commission has reserved these public lands for state highway purposes, a public utility company, by virtue of RCW 79.36.150 through 79.36.170, may obtain a right-of-way for its cables.  Your letter indicates that the public utility company has failed to obtain a right-of-way or other statutory authorization to occupy these lands.  Since these lands are now subject to a right-of-way for this bridge and its anchors and cables, the public utility company is precluded from obtaining a right-of-way over the same land.

             [[Orig. Op. Page 3]]

            The fact that the public utility company has maintained its cables at their present location on these public lands for many years does not enable it to claim any right in the land.  The public utility company cannot claim ownership by adverse possession.  InState v. Scott, 89 Wash. 63, at page 76, the court stated:

            ". . . it is elementary that adverse possession cannot be made the basis of title as against a sovereign state."  [citing cases]

            Further, RCW 7.28.090 specifically excludes public lands from those lands subject to adverse possession.  The public utility company cannot maintain that the state is estopped to deny the company's ownership of these lands.  In Brace & Hergert Mill Co. v. State, 49 Wash. 326, the court denied a mill company's claim that the state was estopped to deny the company's ownership of the land based on the mere silence and acquiescence of the state, even though the mill company and its predecessors in interest had mortgaged and sold the property, paid taxes on it and otherwise treated it as their own.  The recent case ofWiegardt v. State, 27 Wn. (2d) 1 (1947) similarly would not allow estoppel.  In the few cases in which an estoppel was allowed to be raised against the state, the court's decision has been based upon affirmative action by the state.  InStrand v. State, 16 Wn. (2d) 107, equitable estoppel was raised against the state based upon a deed of the lands in question from the state to the plaintiff.  InGreat Nor. R. Co. v. Washington Elec. Co., 197 Wash. 627, equitable estoppel was raised against the state based upon a contract involving the lands in question made by the state with the railroad company.

            Your letter indicates that the design of the bridge will require anchors and cables to be affixed to the floor of Hood Canal in the immediate area of the present submarine telephone and power cables.  By virtue of RCW 47.32.010, the State Highway Commission is granted the power to order the removal of any property or occupancy on the right-of-way where a state highway will be constructed.  If, after proper notice, as set forth in RCW 47.32.020, the property or occupancy is not removed, the property may be confiscated, removed, sold or destroyed without any right or claim by the private party.

            RCW 47.32.010 specifically exempts from its terms public utilities that are on the right-of-way pursuant to franchise.  It is noteworthy, however, that any franchise granted by Chapter 47.44 RCW is limited by its terms so that in case of highway construction a public utility company must relocate at its own expense.  In any event, this question need not concern us here, inasmuch as the companies maintaining cables across Hood Canal are not operating pursuant to any franchise.

             [[Orig. Op. Page 4]]

            Our State Supreme Court has three times held that a public utility company occupying public roads and highways may be compelled to relocate or suffer damage to its facilities without compensation during highway improvements.  This is so even though a public utility company has been occupying the site pursuant to franchise.  InGranger Tel. & Tel. Co. v. Sloane Brothers, 96 Wash. 333 (1917), a telephone and telegraph company was not allowed compensation for damage done to its telephone and telegraph poles during the improvement of county roads.  Even though the utility had placed its poles on the road pursuant to franchise, the court stated that such damage as the utility company suffered was "damnum absque injuria", and was not a "taking or damaging" under Amendment 9 (Art. I, § 16), the eminent domain clause of our constitution.  InPacific Tel. & Tel. Co. v. Slezak, 151 Wash. 457 (1929), the court, based on a similar set of facts, reaffirmed its earlier holding in theGranger case.  Recently inWestern Gas Co. v. Bremerton, 21 Wn. (2d) 907 (1944), our court required a utility company to bear the cost of relocating its pipes when street grades were changed.  Justice Mallery, for the court, stated:

            "The principal ofdamnum absque injuria is an ancient one.  It is applicable here. . . .  The necessity and convenience of the public is being served.  No property is taken; no title is disturbed. . . ."  (Page 910)

            In support of its statement that the authorities were well nigh unanimous on this point, the court referred to 18 Am.Jur. 792, § 161; 28 C.J. 553 § 11; 38 C.J.S. 636 § 12; 38 Am.Jur. 234, § 548.

            InNew Orleans Gaslight Co. v. Drainage Commission of N. O., 197 U.S. 453, 49 L.Ed. 831, 25 S.Ct. 471, the Supreme Court of the United States held that a public utility company forced to relocate at its own expense on city streets has no property rights protected by the Federal Constitution which would require that it be compensated.  The court stated that such damages as the utility company sustained were damnum absque injuria.

            We conclude, therefore, that the public utility company maintaining its submarine cables on the bed of Hood Canal must relocate these cables at its own expense.  The Washington State Toll Bridge Authority is under no legal duty to reimburse the utility for its expenses.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER
Assistant Attorney General

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