CONVEYANCE OF PARK PROPERTY HELD IN FEE BY A CITY OF THE THIRD CLASS TO THE STATE FOR HIGHWAY PURPOSES

CONVEYANCE OF PARK PROPERTY HELD IN FEE BY A CITY OF THE THIRD CLASS TO THE STATE FOR HIGHWAY PURPOSES

A city of the third class is authorized by the provisions of section 1, chapter 266, Laws of 1943, RCW 47.12.040, to convey park lands held in fee to the state for highway purposes.

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                                                                   May 12, 1952

Honorable W. A. Bugge
Director of Highways
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 303

Dear Sir:

            You stated in your recent letter that the highway department is in the process of widening Secondary State Highway No. 5-A within the city limits of Kent, Washington, and in order to complete the improvement requires a conveyance of a portion of the city park.  You further stated that the city is willing to convey for nominal consideration because of the benefits to be received from the improvement, but that their city attorney questions their authority to do so because of the provisions of Rem. Rev. Stat. 9114.  You then ask our opinion as to whether Rem. Supp. 1943, section 6400-26, would not provide such authority.

            Our conclusions may be summarized as follows:

            A city of the third class is authorized by the provisions of section 1, chapter 266, Laws of 1943, RCW 47.12.040, to convey park lands held in fee to the state for highway purposes.

                                                                     ANALYSIS

            We assume that the property to be conveyed is held in fee, so that an attempted conveyance would not work a reversion.  Ordinarily a city holds park property in trust for the public in the city's governmental capacity.  For this reason a  [[Orig. Op. Page 2]] city's general grant of authority to buy and sell property has been construed not to include authority to dispose of park property without specific authority so to do.

            Section 1, chapter 83, Laws of 1933, RCW 35.24.010, to which the city attorney of Kent has referred as preventing the city's disposing of the subject property to the state, includes the provision that the city

            "* * * with the consent of the dedicator or donor, his heirs, successors or assigns may exchange any property * * * acquired for park purposes for other property to be dedicated for park purposes, and may make, execute and deliver * * * proper conveyances to effect such exchange."

            If the city's general powers to buy and sell property do not include the power to sell a park because of the existence of a trust condition, then the authorization contained within this statute to trade would not amount to a limitation upon the city's powers but would constitute a specific authorization to perform an act previously not permitted.  It would therefore seem that this statute has no application to the question presently under discussion and would only be applicable to a situation wherein the city desired to trade a portion of a park for other property to be used for park purposes.

            Section 1, chapter 266, Laws of 1943, RCW 47.12.040, provides in part as follows:

            "Whenever it is necessary to secure any lands for primary or secondary state highway right of way or other state highway purposes, the title to which is in any county of the state or in any political or municipal subdivision of the state, which land is not at the time being used as a public highway, the Board of County Commissioners or the board of directors or governing body of any such political or municipal subdivision are authorized to directly lease, sell or convey by gift such land or any interest therein to the State of Washington, without requiring competitive bids or notice to the public, and at such price as the board, directors or governing body may deem for the best interests of the county or for the best interests of the political or municipal subdivision of the state.  The Board  [[Orig. Op. Page 3]] of County Commissioners or the directors or governing body of any political or municipal subdivision are empowered to execute a deed or other proper instrument to such land, passing title to the State of Washington, and such instrument need not require consideration other than the benefit which may be derived by the grantor on account of the use thereof."  (Emphasis supplied.)

            We believe that "any lands" as used therein is all-inclusive and amounts to a specific authorization by the legislature for the city to convey park lands to which the city has fee for highway purposes.

            In conclusion, therefore, we do not believe that section 1, chapter 83, Laws of 1933,supra, would prohibit the proposed conveyance and that section 1, chapter 266, Laws of 1943, supra, would constitute specific authorization for the city to convey.

Very truly yours,

SMITH TROY
Attorney General

PAUL SINNITT
Assistant Attorney General