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AGO 1959 No. 87 - November 25, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COUNTY - ROADS - WITH THE RIGHT OF WAY ACQUIRED BY COUNTY UNDER RCW 36.75.070 AND 36.75.080.

The width of the right of way which a county is entitled to rely upon for maintenance and improvement on highways acquired by the county under RCW 36.75.070 and 36.75.080 is such width as is reasonably necessary for public travel.

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                                                               November 25, 1959

Honorable Jay Roy Jones
Prosecuting Attorney
Pend Oreille County
Newport, Washington                                                                                            Cite as:  AGO 59-60 No. 87

Dear Sir:

            This is in reply to your letter previously acknowledged in which you requested an opinion of this office on a question which we paraphrase as follows:

            What is the width of right of way the county is entitled to rely upon for maintenance and improvement programs affecting public highways acquired by the county under RCW 36.75.070 and 36.75.080?

            Your question is answered in the analysis.

                                                                     ANALYSIS

            RCW 36.75.070 provides as follows:

            "All public highways in this state, outside incorporated cities and towns and not designated as state highways, which have been used as public highways for a period of not less than seven years, where they have been worked and kept up at the expense of the public, are county roads."

            RCW 36.75.080 provides as follows:

            "All public highways in this state, outside incorporated cities and towns and not  [[Orig. Op. Page 2]] designated as state highways, which have been used as public highways for a period of not less than ten years are county roads."

            The landmark case ofYakima County v. Conrad, 26 Wash. 155, 159, 66 Pac. 411, is determinative of the question involved.  In this case, Judge White, speaking for the court, observed:

            "After the right to a highway has been acquired by usage, the public are not limited to such width as has actually been used.  The right acquired by prescription and use carries with it such width as is reasonably necessary for the public easement of travel, andthe width must be determined from a consideration of the facts and circumstances peculiar to the case.  Whatever may be the width in any particular case, the easement, when acquired by user, cannot be limited to the actual beaten path. . . ."  (Emphasis supplied)

            The above rule was quoted and reaffirmed as decisive of a similar issue inHamp v. Pend Oreille County, 102 Wash. 184, 172 Pac. 869, and Olympia v. Lemon, 93 Wash. 508, 161 Pac. 363.  In the case ofIn re West Marginal Way, Seattle, 109 Wash. 116, 186 Pac. 644, the court again relied on the rule announced in Yakima County v. Conrad, supra, to decide that the county in that case acquired by prescriptive right the whole of a sixty-foot road,notwithstanding the fact that but a portion thereof was actually used.  The rule was recently recognized in the case of Van Sant v. Seattle, 47 Wn. (2d) 196, 287 P. (2d) 130 and amplified somewhat by the language appearing on page 201 therein:

            "Public easements by prescription are generally based upon an implied dedication by the owner of the land. . . . While this theory has not been expressed in our cases, it is implicit in our application of the rule which grew out of it.  In each of the cases cited by appellant, [the same cases cited by the writer of this opinion] we have, in effect, presumed that the roads were dedicated to the full width reasonably necessary for public travel, but have recognized in each case that what is reasonable depends upon the facts and circumstances of the case."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            The court in theVan Sant case set forth a criterion of limitation in determining what property may be included as reasonably necessary for public travel on page 201:

            "Where the owner has placed fences or other obstructions upon his propertyduring the time the statute is running, there is indicated an intention not to dedicate those portions of his property to the public use.  Kruger v. LeBlanc, supra, 4 Tiffany Real Property (3d ed.) 610, § 1218."  (Emphasis supplied)

            At present the standard width of right of way prescribed for county roads is found in § 14, chapter 187, Laws of 1937 (RCW 36.86.010):

            "The width of thirty feet on each side of the center line of county roads, exclusive of such additional width as may be required for cuts and fills, is thenecessary and proper right-of-way width for county roads, . . ."  (Emphasis supplied )

            It is our conclusion that RCW 36.86.010 is a circumstance which a court could properly take into consideration in fixing the width of a county road acquired under RCW 36.75.070 or RCW 36.75.080.  Authority for this conclusion is found in the case of Yakima County v. Conrad, supra, at page 159:

            ". . . Under the general laws of this state, at the time the rights of the public became fixed in this road the maximum width of county roads was sixty feet, and the minimum width thirty feet.  This is a circumstance that the court could take into consideration in fixing the width of the road. . . ."

            Other circumstances which the court could take into consideration in fixing the width of the right of way of a county road acquired by prescription may be found in the cases cited in this opinion.

            In conclusion, it is our opinion that in view of the case of Yakima County v. Conrad, supra, the width of the right of way which the county is entitled to rely upon for maintenance and improvement programs affecting public highways acquired by the county under RCW 36.75.070 and 36.75.080 is such width as is reasonably necessary for public travel.  To determine the width  [[Orig. Op. Page 4]] reasonably necessary for public travel, resort must be had to a consideration of the facts and circumstances of the particular situation.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP M. RAEKES
Assistant Attorney General

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