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AGO 1958 No. 163 - February 21, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COUNTY COMMISSIONERS ‑- AUTHORITY TO CONVEY RIGHT OF ACCESS TO STATE FOR LIMITED ACCESS FACILITIES.

HIGHWAYS ‑- ACQUISITION OF RIGHTS OF ACCESS THROUGH PROPERTY ACQUIRED BY COUNTY THROUGH TAX FORECLOSURE.

Counties may convey rights of access through property acquired through tax foreclosure to the state for limited access highway facilities.

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                                                                February 21, 1958

Honorable William A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                   Cite as:  AGO 57-58 No. 163

Dear Sir:

            By letter, previously acknowledged, you have requested the advice of this office on a question which we paraphrase as follows:

            May a county convey rights of access through properties acquired by such counties through tax foreclosure to the state for limited access highway facilities?

            Your question is answered in the affirmative.

                                                                     ANALYSIS

            RCW 84.64.320 provides as follows:

            "The board of county commissioners may dispose of tax foreclosed property to any governmental agency for public purposes by private negotiation, without a call for bids, for not less than the principal amount of the unpaid taxes."

             [[Orig. Op. Page 2]]

            RCW 47.52.050 provides, in part, as follows:

            ". . . the highway authorities of the state . . . may acquire private or public property and property rights for limited access facilities and service roads, including rights of access, air, view, and light, by gift, devise, purchase or condemnation, . . ."

            By RCW 84.64.320, a county, through its board of county commissioners, is given express authorization to dispose of tax title property.  The question, then, is whether a county is authorized by that statute to convey an easement appurtenant to such property.  In prior attorney general opinions, herein enclosed, it has been uniformly held that easements may be granted, for the power to grant a fee necessarily includes the power to grant an easement.  AGO 51-53 No. 159 [[to Norman A. Ericson, Prosecuting Attorney, Pend Oreille County on October 31, 1951]], and AGO 55-57 No. 259 [[to Charles O. Carroll,40 Prosecuting Attorney, King County on May 2, 1956]].

            The power of the state to condemn property for highway purposes which is owned by a public body is established by State ex rel. Eastvold v. Superior Court of Skagit County, 44 Wn. (2d) 607.  This includes the power to acquire by gift, devise, purchase or condemnation easements of access, air, view and light.  Since the state has plenary power in this area, and the counties are authorized to dispose of tax title property by private negotiation with governmental agencies, it is not reasonable to assume that easements appurtenant to the land can not be conveyed and that the state must resort to a condemnation action.

            Accordingly, it is our conclusion that counties may convey easements of access through tax title property as long as the value of the remainder is not reduced to an extent that it, plus the consideration received from the state, is less than the principal amount of unpaid taxes.

            We trust that the above will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JAMES R. CUNNINGHAM
Assistant Attorney General

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