CITIES AND TOWNS ‑- MUNICIPAL WATER SYSTEM ‑- REAL PROPERTY ‑- ACQUISITION OF TITLE BY ADVERSE POSSESSION

CITIES AND TOWNS ‑- MUNICIPAL WATER SYSTEM ‑- REAL PROPERTY ‑- ACQUISITION OF TITLE BY ADVERSE POSSESSION

The provisions of RCW 7.28.070 and 7.28.080 regarding the acquisition of title to real property by adverse possession do not apply to land owned by a city in connection with its municipal water system for the purpose of insuring that the residents of such city will continue to have an adequate water supply.

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                                                                   March 7, 1973

Honorable Charles D. Kilbury
State Representative, District 16
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 35

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            Do the provisions of RCW 7.28.070 and 7.28.080 regarding the acquisition of title to real property by adverse possession apply to land owned by a city in connection with its municipal water system for the purpose of insuring that the residents of such city will continue to have an adequate water supply?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 7.28.070 provides as follows:

            "Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title.  All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section."

             [[Orig. Op. Page 2]]

            Similarly, RCW 7.28.080 states that:

            "Every person having color of title made in good faith to vacant and unoccupied land, who shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title.  All persons holding under such taxpayer, by purchase, devise or descent, before said seven years shall have expired, and who shall continue to pay the taxes as aforesaid, so as to complete the payment of said taxes for the term aforesaid, shall be entitled to the benefit of this section:  Provided,however, If any person having a better paper title to said vacant and unoccupied land shall, during the said term of seven years, pay the taxes as assessed on said land for any one or more years of said term of seven years, then and in that case such taxpayer, his heirs or assigns, shall not be entitled to the benefit of this section."

            However, RCW 7.28.090, as last amended by § 7, chapter 292, Laws of 1971, Ex. Sess., provides,interalia, as follows:

            "RCW 7.28.070 and 7.28.080 shall not extend to lands or tenements owned by the United States or this state, nor to school lands, nor to lands held for any public purpose. . . ."  (Emphasis supplied.)

            Without question, the maintenance and operation of a water supply system by a city or town constitute a "public purpose" within the meaning of this statute.  See, in particular, RCW 35.92.010, et seq., under which all cities and towns in this state are specifically authorized to maintain and operate water supply systems for the benefit of their inhabitants.  Accordingly it follows that if, as stated in your supplementary letter of March 1, 1973, the property in question is owned and maintained by a city for this purpose, then such land would be exempt  [[Orig. Op. Page 3]] from the operation of RCW 7.28.070 and 7.28.080, supra, by virtue of the express exemption contained in RCW 7.28.090.

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General