ABANDONED STATE HIGHWAYS AND BRIDGES ‑- DUTY OF COUNTY TO ACCEPT AND MAINTAIN

ABANDONED STATE HIGHWAYS AND BRIDGES ‑- DUTY OF COUNTY TO ACCEPT AND MAINTAIN

Abandoned segments of the state highways and bridges therein must be accepted by the counties in which they are contained when the transfers are made pursuant to law.  Such roads and bridges are the proper subject for an emergency county appropriation in situations in which the county road fund is insufficient to properly maintain them.

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                                                              September 10, 1953

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 131

Attention:  !ttMr. A. E. Hankins

            Chief Examiner

Dear Sir:

            Your letter of August 25, 1953, quoted a part of chapter 57, Laws of 1953, as follows:

            "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 the limits of incorporated cities or towns, shall, upon certification thereof by the state highway commission to the board of the county in which any portion of such highway is located, be and become a county road of such county, * * * 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 * * * a deed of conveyance on behalf of the state to such abandoned highways or portions thereof."

             [[Orig. Op. Page 2]]

            You have requested the opinion of this office concerning the above statute as follows:

            (1) Is it mandatory that a county accept said property from the state as becoming a part of the county road system?

            (2) If your answer to question No. 1 is in the affirmative, would it also apply to an abandoned bridge which was a part of the state highway system?

            (3) If your answer to question No. 1 is in the affirmative and there existed no appropriation for maintenance of said bridge or road at the time of transfer of property from the state to the county, would an emergency at that time be considered legal?

            It is our conclusion that each of these questions requires an affirmative answer.

                                                                    ANALYSIS

            (1) Counties are creatures of the legislature and have only those powers vested in them by law, and are always subject to the general laws of said legislature.  Wash. Const., Art. XI, § 4, Amend. 21.  Therefore, when the legislature by general law passes a statute which uses mandatory language providing "shall * * * be and become a county road" then there is no doubt that such road must be accepted by the county as there is no power conferred on counties to refuse such property.

            (2) This would also apply to a bridge as it has been held by the Washington Supreme Court that a bridge across a stream is in itself a "public highway" and is an integral part of a highway along which it is erected.  State v. Vantage Bridge Co., 134 Wash. 568; Berglund v. Spokane County, 4 Wn. (2d) 309; Lucas v. Phillips, 34 Wn. (2d) 591.

            (3) An emergency appropriation would be valid under the authority of RCW 36.40.180 which provides for appropriations "to meet mandatory expenditures required by law."  Concluding that it is mandatory that the county accept the highway under the provisions of Chapter 57, Laws of 1953, then it must be implied that said county must properly maintain such property as there is no provision that the state will continue to do so.  InSchinaman v. Skamania County, 23 Wn. (2d) 904, the court held that after a segment of state highway has been  [[Orig. Op. Page 3]] transferred to a county the duty of maintaining it in a reasonably safe condition for public travel devolves upon the county.  However, it must also follow under authority of State ex rel. Lawler v. Grant, 178 Wash. 61, that no necessity for this emergency appropriation exists until the county road maintenance fund, already in the budget, is exhausted.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General