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Bob Ferguson

AGLO 1970 No. 46 - Mar 25 1970
Attorney General Slade Gorton

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                                                                  March 25, 1970
Mr. Ernest Geissler, P.E.
Administrative Engineer
County Road Administrative Board
106 Maple Park
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 46
Dear Mr. Geissler:
            You have requested our opinion as to the methods by which a county road may be established.
            In our opinion there are several methods by which a highway may become a county road.  One method is, of course, by means of the formal procedure set forth in chapter 36.81 RCW.
            A second method is by dedication of roads in a plat duly approved by county authorities.
            In an opinion by the Attorney General to Richard A. Perry, Prosecuting Attorney for Ferry County, dated May 15, 1952 (OAG No. 51-53-307) [[AGO 51-53-307]], it was concluded that when county commissioners by appropriate action approve a proposed plat, the roads therein dedicated become county roads.  Although since that time chapter 58.16 RCW relating to the control of plats has been repealed, a new chapter governing plats has been enacted (Ch. 271, Laws of 1969 1st Ex. Sess.), containing nearly identical language to that quoted in the 1952 opinion charging the county commissioners with the responsibility of determining if appropriate provisions are made for streets and other public ways.
            A review of the case and statutory authority compels us to reaffirm the 1952 opinion.  In State ex rel. York v. Board of County Com'rs, 28 Wn.2d 891, 184 P.2d 577 (1947), our court declared that land dedicated as a highway is devoted to a general or public use.  Accord: Cummins v. King County, 72 Wn.2d 624, 434 P.2d 588 (1967).  Section 30 of Ch. 271, Laws 1st Ex. Sess. 1969, further reflects that streets dedicated in a plat are dedicated to the public.  Given the proposition that the streets so dedicated are open to the public, it necessarily follows that they are public highways by statutory definition.  RCW 47.04.010 (28).  Public highways, in the State of Washington which are located outside incorporated cities and towns and which are not state highways are county roads.  RCW 47.04.020.  Accordingly, if the  [[Orig. Op. Page 2]] county commissioners, by appropriate action, have accepted a plat including the dedicated roads referred to therein, and these roads are not state highways, these roads become county roads.  Implicit in such decisions as Finch v. Mathews, 74 Wn.2d 161, 443 P.2d 833 (1968); and Miller v. King County, 59 Wn.2d 601, 369 P.2d 304 (1962), is the unquestioned assumption that if a county properly accepts a plat, the roads dedicated therein become county roads.
            It should be further stated that there are additional statutory provisions pursuant to which public ways are legally classified as county roads:
            RCW 36.75.070
            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
            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 nor 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.
            RCW 36.75.090
            All public highways in this state which have been a part of the route of a state highway and have been or may hereafter be no longer necessary as such, if situated outside of the limits of incorporated cities or towns, shall, upon certification thereof by the state highway commission to the board  [[Orig. Op. Page 3]] of the county in which any portion of such highway is located, be and become a county road of such county, and if situated within the corporate limits of any city or town shall upon certification thereof by the state highway commission to the mayor of the city or town in which any portion of such highway is located be and become a street of such city or town, and upon such certification the state highway commission may certify to the governor the abandonment of such highways, giving a description thereof and the governor may execute and the secretary of state shall attest and deliver to the county or city as the case may be a deed of conveyance on behalf of the state to such abandoned highways or portions thereof.
            In summary, the statutory law provides several methods by which to establish a county road.  Chapter 36.81 RCW is but one of the methods.
            We trust the foregoing information will be of assistance to you.
Very truly yours,
Assistant Attorney General