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Bob Ferguson

AGO 1958 No. 222 - Oct 22 1958
Attorney General John J. O'Connell


The purchaser of the right to dam up water and overflow state land under RCW 79.36.210 may remove dirt, stone and other fill material for use in constructing the dam.

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                                                                October 22, 1958

Honorable Bert L. Cole
Commissioner of Public Lands
Public Lands-Social Security Building
Olympia, Washington                                                                                    Cite as:  AGO 57-58 No. 222

Dear Sir:

            You have asked whether a purchaser of the right to dam up water and overflow state land under RCW 79.36.210 may remove dirt, stone and other fill material for use in constructing the dam.

            We answer in the affirmative, although the answer should be construed in the light of the following analysis and statement of facts.


            Your question arises out of the Swift Hydroelectric Project currently under construction on the Lewis River.  On June 19, 1956, the land commissioner issued two orders, one, granting the right to overflow certain lands in Skamania county pursuant to application No. 23629; the other, granting the right for a dam site at the same location pursuant to application No. 23630.  Each order recited that the amounts paid for the respective rights constituted full compensation for the perpetual use of the land and for all damage resulting to the state out of the exercise of those rights.  The two applications were submitted concurrently.  Application No. 23630 made reference to the other, and requested the use of materials in constructing the dam.  According to maps accompanying the applications the dam was to rest approximately one‑half on state land and one‑half on adjoining private land.

             [[Orig. Op. Page 2]]

            Following issuance of the orders, the applicant proceeded to use rock that had been cut out of state land in excavating for the spillway and earth that was excavated for use as fill.  About one‑half of the rock material and the earth were moved onto private land at the far end of the dam.  However, a large quantity of earth was moved in from other sources, so there was a net gain of dirt to the state.  The question is, whether the power company is liable for conversion of the rock and dirt and whether it may be enjoined from further removal.

            RCW 79.36.210 authorizes the commissioner to sell the perpetual right to overflow state land for the purpose of operating a water-power plant (and for other purposes not relevant).  In such case, advertisement and bid are not required, but the land is to be appraised as upon an application to purchase [the fee in] such lands.  RCW 79.12.020 provides that prior to an appraisal for a sale in fee, there shall be an inspection as to various factors, including timber, coal, mineral, stone, gravel, or other valuable material.  It is to be conclusively presumed the commissioner considered these factors in appraising the value of the dam site and overflow right in this case.  It is therefore presumed the applicant paid the value in fee as stated in the order based in part upon the value of the materials.

            Moreover there seems to be no statute expressly authorizing a right of way for a dam site as distinguished from a transmission line. cf. RCW 79.36.150.  But, the right to construct a fill, necessary to take advantage of the overflow right, is implied in the grant itself, pursuant to the doctrine of secondary easements.  (See 17A Am.Jur., Easements, § 113.)  For the same reason, we think the buyer may use materials from the overflow area in constructing the fill.

            The doctrine of secondary easement is recognized in a line of railroad and highway cases, upholding an inherent right to move dirt from within the boundaries of the easement, for the making of fills.  The cases go further and allow the grantee to move dirt along the right of way and on to the land of another fee‑owner.  As to railways, see: Wright v. St. Louis Southwestern Ry. Co., 175 Fed. 845 (S.D. N.Y., 1910); Nashville, C. & St. L. Co. v. Karthaus, 150 Ala. 633, 43 So. Rep. 791 (1907); Cleveland C. C. & St. L. R. Co. v. Hadley, 179 Ind. 429, 101 N.E. 473 (1882); Hollingsworth v. Des Moines & St. L. R. Co., 63 Iowa 443, 19 N.W. 325 (1884);  Earlywine v. Topeka, S. & W. R. Co., 43 Kan. 747, 23 Pac. 940 (1890);New Orleans, B. R. V. & M. R. Co. v. Brown, 64 Miss. 479, 1 So. 637 (1887); Hall v. Delaware, L. & W. R. Co., 270 Pa. 468, 113 Atl. 669 (1921); Davidson v. Houston E. & W. T. R. Co., Tex. Civ. App. 194 S.W. 211 (1917); and as to highways, see:  Olsen v. Great Western Power Co., 127 Cal.App. 710, 16 P. 2d 347 (1932); New Haven v. Sargent, 38 Conn. 50, 9 Am.Rep. 360 (1871); Pillings v. Pottawattamie County, 188 Iowa 567, 176 N.W. 314 (1920); Bundy v. Catto, 61 Ill. App. 209 (1895);  [[Orig. Op. Page 3]] Haas v. Evansville, 20 Ind. App. 482, 50 N.E. 46 (1898);  Bissell v. Collins, 28 Mich. 277, 15 Am.Rep. 217 (1873); Psota v. Sherman County, 124 Neb. 154, 245 N.W. 405 (1932); Huston v. Ft. Atkinson, 56 Wis. 350, 14 N.W. 444 (1882).

            The rule has been applied so as to allow the removal of dirt and rock not necessary to any cut, in the construction of a railroad or highway.  Earlywine v. Topeka, S. & W. R. Co., 43 Kan. 747, supra; Olsen v. Great Western Power Co., 127 Cal.App. 710, 16 P. (2d) 347,supra.  In the latter case, the court held adequate an award for land for a public highway even though materials taken from borrow pits within the easement area were not included as an element of damage.

            Applying the foregoing authorities, and in view of the provisions of statute, we think the power company had the right to remove onto private land, as well as state land, rock that was cut as a part of the spillway excavation.  We think this right extended to earth placed on the fill, whether or not its excavation was otherwise necessary; certainly, where the power company had asked for the right in the application.  Inasmuch as equivalent amounts were returned to state land from other sources there can be no question whatever concerning removal of earth to private land.

Very truly yours,

Attorney General

Assistant Attorney General