CITIES AND TOWNS - POWER TO CONDEMN EASEMENT FOR INSTALLATION OF SEWER IN STREETS OF ANOTHER CITY

CITIES AND TOWNS - POWER TO CONDEMN EASEMENT FOR INSTALLATION OF SEWER IN STREETS OF ANOTHER CITY.

A city does not have the power to condemn property of another municipality for the installation of a sewer line.

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                                                              September 23, 1959

Honorable Shirley R. Marsh
State Representative, 18th District
1554 Broadway
Longview, Washington                                                                                            Cite as:  AGO 59-60 No. 69

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office concerning a question which we paraphrase as follows:

            Does the city of Kelso have the power to condemn an easement for the installation of a sewer line within streets in the city of Longview?

            We answer this question in the negative.

                                                                     ANALYSIS

            Initially, to reach the question involved it is necessary to determine if the city of Kelso, in acquiring the easement for a sewer line within streets of the city of Longview, is taking an interest or easement in the property belonging to abutting landowners (who own the fee beneath the street) or a right vested in the city of Longview by virtue of having jurisdiction over and control of the street.

            Our court has answered this question in the recent case of Northwest Supermarkets, Inc., v. Crabtree, 154 Wash. Dec. 173 [[54 Wn.2d 181]], 178.  There, one party had granted to another (without any objection by the county) the right to construct a storm sewer within a street located in a platted area, where the grantor was the abutting owner on both sides of the street.  The grantor them attempted to have it removed and the court in holding that the abutting owner had no right in regard to this easement, said:

             [[Orig. Op. Page 2]]

            ". . .  The applicable rule is stated in 11 McQuillin on Municipal Corporations (3d ed.) 212, § 31.18:

            "'The right to the use of a public street or alley by a municipal corporationfor sewer and drainage purposes is necessarily incident to the use for which streets and alleys are opened and laid out.  Such use is proper and lawful, is not inconsistent with the object of their establishment, and is not an additional burden on the easement, entitling the abutting owners or the owners of the fee to compensation. . . .'" (Emphasis supplied.)

            The court went on to say that (p. 179):

            "By their dedication the appellants have granted to the county the easement rights incidental to the use of the street, which includes the storm sewer.  Therefore, there remains no interest in realty that the appellants could convey to the respondent under their agreement. . . ."

            Therefore, the right to install a sewer line within a city street is not an interest in land vested in the abutting owner and constituting private property, but it is public property owned and controlled by the city by virtue of the property being dedicated as a street for public use.

            The following statutes grant the power of eminent domain to cities and towns for the purposes of sewerage systems:

            Section 1, chapter 90, Laws of 1959, amending RCW 35.67.020, provides:

            "Every city and town may construct, condemn and purchase, acquire, add to, maintain, conduct,and operate systems of sewerage and systems and plants for refuse collection and disposal together with additions, extensions, and betterments thereto,within and without its limits, with full jurisdiction and authority to manage, regulate, and control them and to fix, alter, regulate, and control the rates and charges for the use thereof: . . ." (Emphasis supplied.)

            RCW 35.24.310 provides in part as follows:

            "Whenever it shall become necessary for the city to take or damage private property . . . for the  [[Orig. Op. Page 3]] purpose of securing rights-of-way for drains,sewers, . . . and the city council cannot agree with the owner thereof as to the price to be paid, the city council may proceed to acquire, take or damage the same in the manner provided by chapter 8.12 [[chapter 8.12 RCW]][eminent domain by cities] or by chapter 8.20 [[chapter 8.20 RCW]][eminent domain by corporations]."  (Emphasis supplied.)

            RCW 8.12.030 provides that:

            "Every city and town and each unclassified city and town within the state of Washington,is hereby authorized and empowered to condemn land and property, including state, county and school lands and property for streets, avenues, alleys, highways, bridges, approaches, culverts, drains, ditches, public squares, public markets, city and town halls, jails and other public buildings, . . . andto condemn land or property, or to damage the same, either within or without the limits of such city for public parks, drives and boulevards, hospitals, pesthouses, drains andsewers, garbage crematories . . ."  (Emphasis supplied.)

            These eminent domain statutes which grant cities and towns the power to condemn property for sewerage systems do not expressly authorize the condemnation of property of other cities.  Our court in the early case ofSeattle & Montana Railway Company v. State, 7 Wash. 150, 151, 34 Pac. 551, stated an applicable rule of construction of eminent domain statutes as follows:

            ". . . Our eminent domain act, as applied to railroads . . . must be construed, as are all such acts, as having regard only to the taking of private property, unless there is either express or clearly implied authority to extend them further. . . ." (Emphasis supplied.)

            See, also, 11 McQuillin on Municipal Corporations (3rd ed.) § 32.74.

            Neither RCW 35.67.020 nor RCW 35.24.310 grant to municipal corporations the specific power to condemn property belonging to other municipal corporations.  RCW 8.12.030 does provide that, "every city and town . . . is hereby authorized . . . to condemn land and property, includingstate,  [[Orig. Op. Page 4]] county andschool lands and property . . ." for various municipal purposes, although sewers are not specifically enumerated in the first portion of the statute.  The latter portion of the statute grants the power "to condemn land or property, or to damage the same, either within or without the limits of such city for . . . sewers, . . ."

            The above statute does not specifically authorize the condemnation of property belonging to one city or town by another city or town.  In order for this conclusion to be reached we must hold that when the legislature specifically granted the power to cities and towns to condemn state, county and school lands, that this also included the right to condemn other publicly owned lands, e.g., property owned and controlled by a city or town as in the instant case.

            Therefore, because of the rule that statutes delegating the power of eminent domain to political subdivisions must be strictly construed, and the power must be given in express terms or by necessary implication, Seattle v. State, 154 Wash. Dec. 128 (1959) [[54 Wn.2d 139]], we believe that RCW 8.12.030 cannot be construed as granting the power to condemn property of a city or town by another city or town for sewerage purposes.  The land here in question is neither state, county or school land nor can it be so construed by necessary implication.

            In conclusion, it may be said that since the law does not expressly give the city of Kelso the right to condemn property of another city for a sewer line the city is without this power and cannot exercise it.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

RICHARD M. MONTECUCCO
Assistant Attorney General