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Bob Ferguson

AGLO 1974 No. 30 -
Attorney General Slade Gorton


A county, in the exercise of its authority under chapter 36.94 RCW, to construct and maintain a drainage system, may place any of the physical facilities involved on privately owned land pursuant to easements by the private owners of the land.

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                                                                   March 8, 1974

Honorable Thomas S. Pryor
Director, Department of Emergency Services
4220 E. Martin Way
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 30

Dear Sir:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

            May a county, in exercise of its authority under chapter 36.94 RCW to construct and maintain a drainage system, including a system of storm sewers, place any of the physical facilities involved on privately owned land pursuant to easements or other appropriate property rights granted for that purpose by the private owners of that land?

            We answer this question in the affirmative, subject to certain qualifications set forth in our analysis.


            Chapter 36.94 RCW codifies the provisions of chapter 72, Laws of 1967, as amended.  As indicated in AGO 1973 No. 15 [[to Christopher T. Bayley, Prosecuting Attorney, King County on June 26, 1973]], copy enclosed, the legislature by its enactment of this law declared the construction, operation and maintenance of sewerage and/or water systems to be a county purpose.  See, RCW 36.94.020, which so provides, and then goes on to state that:

            ". . .  Subject to the provisions of this chapter, every county has the power, individually or in conjunction with another county or counties to adopt, provide for, accept, establish, condemn, purchase, construct, add to and maintain a system or systems of sanitary and storm sewers, including outfalls, interceptors, plans and facilities necessary for sewerage treatment and disposal, and/or system or systems of water supply within all or a portion of the county: . . ."

             [[Orig. Op. Page 2]]

            The terms "system of sewerage" and "system of water" are defined in RCW 36.94.010, as follows:

            "As used in this chapter:

            "(1) A 'system of sewerage' means and includes:

            "(a) Sanitary sewage disposal sewers;

            "(b) Combined sanitary sewage disposal and storm or surface water sewers;

            "(c) Storm or surface water sewers;

            "(d) Outfalls for storm or sanitary sewage and works, plants, and facilities for sanitary sewage treatment and disposal;

            "(e) Combined water and sewerage systems;

            "(f) Any combination of or part of any or all of such facilities.

            "(2) A 'system of water' means and includes:

            "(a) A water distribution system, including dams, reservoirs, aqueducts, plants, pumping stations, transmission and lateral distribution lines and other facilities for distribution of water;

            "(b) A combined water and sewerage system;

            "(c) Any combination of or any part of any or all of such facilities."

            In the exercise of the authority thus granted, there is no question but that a county may not construct any of these facilities on private land under circumstances that would amount to either a trespass or the conferring of a private rather than public benefit.  Such acts, in fact, would likely constitute violations of either or both Article I, § 16 of the Washington state Constitution relating to eminent domain and Article VIII, § 7 prohibiting gifts of public funds.  See, also, our earlier opinion to the prosecuting attorney of Kitsap county, December 11, 1939, and AGO 1945-46 p. 791 to the prosecuting attorney of Douglas county, May 16, 1946 [[to the Honorable Ned W. Kimball]], copies enclosed.  Furthermore, for a county to construct  [[Orig. Op. Page 3]] such facilities on private land as may require future county maintenance, without first obtaining appropriate site and access rights, would appear to be so lacking in due care as to constitute malfeasance or misfeasance as those terms are defined in State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948).

            Thus, in direct answer to your question, the legal ability of a county to place any of its water or sewerage facilities upon privately owned land would necessarily be dependent upon its ability to obtain sufficient easements or other property rights from the owners of that land to enable the county to do so without trespassing upon the rights of the private owners.  And, moreover, any such easements or other rights should either be perpetual or at least of a duration sufficient to protect the public's investment in the facilities and in the over-all project for which such facilities were constructed.

            Given the existence of such protective rights, however, we find nothing in chapter 36.94 RCW or any other statute or constitutional provision that would prevent a county, in the exercise of its authority under that chapter, to construct and maintain a drainage system, including a system of storm sewers, which would involve the placement of some of those facilities on privately owned land.  To the extent that your question, as above paraphrased, presupposes the existence of the necessary property rights we have discussed, we therefore believe that it may be answered in the affirmative.

            To this we would only add the obvious point that in thus concluding, we are not to be taken as having passed upon the over-all legality of any particular county drainage project ‑ for other legal issues beyond those herein considered could readily be found to exist in connection with any specific factual situation.  We trust that you will understand, and that the foregoing opinion will be of some assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General