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Bob Ferguson

AGO 1957 No. 32 -
Attorney General John J. O'Connell


The duty and liability of a county to maintain a county road once a part of a county road system cannot be divested by mere resolution.

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                                                                  March 13, 1957

Honorable Thurman E. Ward
Prosecuting Attorney
Klickitat County
Goldendale, Washington                                                                                                                Cite as:  AGO 57-58 No. 32

Dear Sir:

            In your letter of February 19, 1957, you requested the opinion of this office on a certain question which we paraphrase as follows:

            May the county commissioners by resolution withdraw county roads from the county road system and thus relieve the county from the duty and liability of maintenance without the road losing the status of a county road?

            We answer this question in the negative.


            Your letter referred to RCW 36.75.080 (1955 Supp.) as possible authority for action by the county commissioners pursuant to the aforementioned question.

            Section 3, chapter 361, Laws of 1955, (RCW 36.75.080) provides:

            "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 ten years are county roads:  Provided, That no duty to maintain such public highway for any liability for any injury or damage for failure to maintain such public highway or any road signs thereon shall attach to the county until the same shall have been adopted as a part of the county road system by resolution of the county commissioners."

             [[Orig. Op. Page 2]]

            Prior to the amendment of RCW 36.75.080 by chapter 361, Laws of 1955, a public highway used for the prescriptive time of not less than ten years became a county road and part of the county road system.  It is evident that the object of chapter 361 is to relieve the counties of the duty and liability of maintaining public roads that become county roads on the basis of the expiration of the prescriptive ten-year period.  By this amendment the legislature intended that the duty and liability of maintaining roads that automatically become county roads after ten years would not necessarily devolve upon the county.  Rather the road must be adopted by resolution as a part of the county road system by the county commissioners before the duty of maintenance attaches to the county.

            We are of the opinion that under RCW 36.87.080 (1955 Supp.), a county may, by resolution, assume the duty and liability of maintenance of a county road on the expiration of the prescriptive period but cannot, by mere resolution, divest itself of this duty and liability, once assumed.

            The legislature has provided in RCW chapter 36.87, the statutory procedure by which a county may divest itself of the duty and liability of maintaining county roads which become part of the county road system either before or after the enactment of chapter 361, Laws of 1955.

            RCW 36.87.010 reads:

            "When a county road or any part thereof is considered useless, the board by unanimous resolution entered upon its minutes, may declare its intention to vacate and abandon the same or any portion thereof and shall direct the county road engineer to report upon such vacation and abandonment."

            RCW 36.87.020 reads in part:

            "Ten freeholders residing in the vicinity of any county road or portion thereof may petition the board to vacate and abandon the same or any portion thereof . . ."

            This chapter of the code further provides that the county engineer shall examine the county road under consideration for vacation and report his opinion as to whether the county road should be vacated and abandoned; provides for publication of notice of hearing on the report; provides for a public hearing; and stipulates that a unanimous vote is required by the board of  [[Orig. Op. Page 3]] county commissioners properly entered, or by operation of law, or judgment of a court of competent jurisdiction (for vacation and abandonment).

            In an annotation at 175 A.L.R. 760, 762, the following statement is made:

            "While some limitations to its application are to be found, the rule appears to be quite general that where the procedure for the vacation, discontinuance, or alteration of a public street or highway by direct action of public authorities is prescribed by statute, it is necessary to adhere to such procedure in order that the vacation or alteration may be effective. . . ."  Brazell v. Seattle, 55 Wash. 180.

            In any event, the vacation and abandonment of a county road would not destroy the private easement of egress and ingress of a property owner established by prescription, when the only means available would be by the vacated and abandoned county road.  Van Buren v. Trumbull, 92 Wash. 691.

            In conclusion, it is our opinion that a county can only escape the duty and liability of maintaining a county road, once a part of the county road system, by following the statutory vacation procedure.  To allow otherwise would deny to the public the safeguards incorporated in the vacation statutes.  39 C.J.S., Highways, 121.

Very truly yours,

Attorney General

Assistant Attorney General