COUNTIES ‑- COMMISSIONERS ‑- AUTHORITY TO DEVELOP WATERFRONT STREET ENDS INTO BOAT LAUNCHING RAMPS ‑- COUNTY ROAD FUNDS

COUNTIES ‑- COMMISSIONERS ‑- AUTHORITY TO DEVELOP WATERFRONT STREET ENDS INTO BOAT LAUNCHING RAMPS ‑- COUNTY ROAD FUNDS.

The board of county commissioners of King county has the authority to develop waterfront street ends into boat launching ramps and to use county road funds, including motor vehicle funds, for such purpose.

                                                              - - - - - - - - - - - - -

                                                               December 12, 1962

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                              Cite as:  AGO 61-62 No. 182

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on questions which we paraphrase as follows:

            1. Do the King county commissioners have authority to develop waterfront street ends into boat launching ramps?

            2. If so, may they use county road funds, which include motor vehicle funds, for this purpose?

            We answer both questions in the affirmative.

                                                                     ANALYSIS

            In your letter you state:

            "The King County Commissioners and the King County Engineer have been requested to develop waterfront street ends into boat launching ramps.  The proposed development would be financed through expenditure of county road funds under the assumption that certain fuel taxes are not refunded for boat owners and are then available for road use.  Also, that boat-trailer license fees are available in addition as part of the road fund."

             [[Orig. Op. Page 2]]

            We note initially that we are not here concerned with the method whereby the uplands, shorelands, or tidelands which might be improved with boat launching ramps were originally dedicated as county roads.  We assume a proper dedication.  The problem here is whether construction of the boat launching ramps on the properties so dedicated is a proper and legitimate county road purpose and expenditure.

            Question 1:

            Do the King county commissioners have authority to develop waterfront street ends into boat launching ramps?

            Boards of county commissioners have only such power as have been granted to them, expressly or by implication, by the constitution and statutes of the state.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938).  Section 2, chapter 27, Laws of 1961 (cf. RCW 36.32.120), states in part:

            "The several boards of county commissioners shall:

            ". . .

            "(2) Lay out, discontinue, or alter county roads and highways within their respective counties, and do all other necessary acts relating thereto according to law, except within cities and towns which have jurisdiction over the roads within their limits;"

            Section 1, chapter 82, Laws of 1943 (cf. RCW 36.75.020) states:

            "All of the county roads in each of the several counties shall be established, laid out, constructed, altered, repaired, improved and maintained by the Board of County Commissioners of the respective counties as agents of the State of Washington."

            Section 1, chapter 73, Laws of 1943 (cf. RCW 36.75.050), states in part:

            "In the exercise of any of the powers and duties by this act or other law of this state vested in or imposed upon the boards of County Commissioners with respect to the establishing, laying out, examining, surveying, constructing,  [[Orig. Op. Page 3]] altering, repairing, improving, and maintaining of the county roads of any county, the same shall be under the supervision and direction of an engineer who shall be a registered and licensed professional civil engineer under the laws of this state, duly qualified and experienced in highway and road engineering and construction."

            Citing the latter two statutes, the court said in State v. Whetstone, 30 Wn. (2d) 301, 191 P. (2d) 818 (1948), at page 310:

            ". . . it is apparent that the power to establish, lay out, construct, alter, repair, improve, and maintain county roads is in the county commissioners of the several counties."

            It is stated in 25 Am.Jur. Highways, § 202:

            "The rule that a road commencing or terminating at another road is intended to furnish a passage from and to the latter applies to a road terminating at a navigable river or other body of navigable water, and the terminus may be presumed to have been intended for a public landing as an incident to the highway. . . ."

            See, Gould on Waters (3rd ed.), § 119, quoted in Anderson Steamboat Co. v. King County, 84 Wash. 375, 378, 146 Pac. 855 (1915);Chlopeck Fish Co. v. Seattle, 64 Wash. 315, 117 Pac. 232 (1911).

            Thus, dedication to the use of the public of a street extending to the shore of a lake will be presumed to have been intended to enable the public to have access to the water for all proper public purposes.  Application of Baldwin, 218 Minn. 11, 15 N.W. (2d) 184 (1944).  Backus v. Detroit, 49 Mich. 110, 13 N.W. 380 (1882).  If a street affords the public access to public waters it will not be vacated as "useless."  Application of Baldwin, supra.  A public street leading to navigable water will keep even pace with the extension of the land, whether the change in the land be due to natural causes or the voluntary act of the owner of the land.  Frater v. Baylen Street Wharf Co., 57 Fla. 63, 49 So. 188 (1909); Backus v. Detroit, supra.  A city may not grant exclusive use of a public landing.  Cape Cod S. S. Co. v. Selectmen, Provincetown, 295 Mass. 65, 3 N.E. (2d) 244 (1936).  A  [[Orig. Op. Page 4]] public landing may not be obstructed.  Chicago, R. I. & P. Ry. Co. v. The People, 222 Ill. 427, 78 N.E. 790 (1906).

            Perhaps because the widespread use of boat trailers is a relatively recent development, we have found no cases in which the nature of boat launching ramps as we know them today are discussed.

            Some aid is found in older cases discussing public wharves and landings.  Wharves have been considered highways for some purposes, see, Hafner Mfg. Co. v. St. Louis, 262 Mo. 621, 172 S.W. 28 (1914), (adverse possession) but not for other purposes, see, State ex rel. Wauconda Inv. Co. v. Sup'r. Ct., 68 Wash. 660, 124 Pac. 127 (1912), (condemnation).  Courts are divided on whether the power to improve roads implies the power to build wharves.  ComparePan-Pacific Const. Co. v. Meadows, 85 Cal. App. 775, 260 Pac. 355 (1927), withSnyder v. The President, &c., of Rockport, 6 Ind. 237 (1855).  The latter case held that Rockport had no power to construct a wharf, although it had power to improve streets, but added at page 241:

            ". . . Nevertheless, the corporation will not be restrained from grading main street simply because, if that street is graded, the river end of it will accidentally be a wharf.  The corporation has the right to improve that street, to grade it down to the river, to dispose of the surplus earth, &c., and, if in doing all this in a manner pointed out by law, a wharf or steamboat landing results, we should suppose it perfectly legal and a peculiarly fortunate incident to the town."

            There are important differences between the use of wharves and of roads.  In Kemp v. Stradley, 134 Mich. 676, 679, 97 N.W. 52 (1903), the court said:

            ". . . A city owning a wharf has a right to use it for the purposes of a wharf as other wharfs may be used, except that, at the ends of streets, such wharves must be open to public use, as provided by the charter.  This does not mean that wharfage cannot be charged for the use of the dock, or that the dock may not be used for loading and unloading and temporary storage of commodities, in accordance  [[Orig. Op. Page 5]] with the custom of using other wharves, and to such extent any general right of access and travel must yield.  The city may regulate such wharves, and such regulations may be distinctive regulations, adapted to the use of wharves, rather than streets. . . ."

            Cases on landings are rarer, but in Webb v. Demopolis, 95 Ala. 116, 13 So. 289 (1891), an injunction against the obstruction of a street leading to a river was upheld, and on pages 294-295 of 13 So. (1892), the following language was used:

            "Nor do we question the right and power of the city of Demopolis to provide facilities looking to the use of this street as a means for the passage of persons and property back and forth from the town to the river.  The right to so use it free of charge being in the public, it may be‑- indeed we are inclined to that view‑-that the city could not, without special statutory authority, engage in the business of wharfing in the sense of erecting wharves, providing keepers thereof, and charging the public for the privilege of using them in going onto or off from the river, or in lading or unlading property from or on them.  But we do not doubt that the city, in the absence of legislative delegation of it, has the power and authority which is implied from the location of this street and the manifest purposes of its dedication not only to make suitable and convenient approaches from the town to the water line, but also to make such structures or excavations at and even beyond the water line, having regard to the rights of navigation, as are reasonably necessary and proper to enable the public to conveniently avail themselves of the rights of commerce and transportation which the river offers.  The existence and exercise of the right to do this is essential to the enjoyment of that other right which the inhabitants of the town and the public incontrovertibly have to pass in their persons and effects from the town to the river, and vice versa, and hence is a right implied from its necessary connection with a right which is expressly granted.  It is  [[Orig. Op. Page 6]] based on the same principle of necessity as that under which a municipality would rest to adjust the grade of a street with the grade of a public road leading up to its corporate line, and which, we apprehend, might, when necessary, be done by depressing or elevating the latter, though dissociated from the street the municipal authorities would have no power to build or change a highway beyond the lines of the town. . . ."

            The present question must be finally answered on the basis of whether the power to improve county roads ending at navigable water for use as boat launching ramps is fairly inferable from "the power to establish, lay out, construct, alter, repair, improve, and maintain county roads."  State v. Whetstone, supra.

            Public boat launching ramps are usually formed by grading and surfacing an area so that boat trailers and other vehicles can be driven up to and into the water.  They look like roads and are used by motor vehicles designed for road use.  They are open to all who have occasion to use them.  The fact that a road benefits particular persons or classes of persons more than others does not make it any less a public road, if all persons have the right to use it.  State ex rel. O-W R. & N. Co. v. Walla Walla Co., 5 Wn. (2d) 95, 104 P. (2d) 764 (1940).

            On the basis of both law and reason, we conclude that the power of the board of county commissioners to construct and improve county roads implies the power to make roads leading into navigable water useful for launching boats from motor vehicles and trailers.

            In thus concluding, we are aware that authority to construct boat launching facilities has been granted to other agencies.

            RCW 43.51.220 states with reference to the state parks and recreation commission:

            "To encourage the development of the Puget Sound country as a recreational boating area, the commission is authorized to establish landing and other facilities for small pleasure boats at places on Puget Sound frequented by such boats and where the commission shall find such facilities will be of greatest advantage to the users of pleasure boats. . . ."

             [[Orig. Op. Page 7]]

            RCW 77.12.200 states with reference to the game commission:

            "The director . . . may acquire . . . lands . . . for . . . public hunting and fishing areas. . . ."

            The department of fisheries may acquire land and construct facilities to carry out its purposes.  RCW 75.08.030, 75.08.040.

            However, since none of these agencies has been given state‑wide [[statewide]]powers to provide access to public waters for all public purposes, we perceive no legislative intention that these agencies should haveexclusive authority to develop boat launching facilities.

            We answer question one in the affirmative.

            Question 2:

            May county road funds, which include motor vehicle funds, be used to construct boat launching ramps?

            Amendment 18 to the Washington State Constitution reads in pertinent part:

            "All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.  Such highway purposes shall be construed to include the following:

            ". . .

            "(b) The construction, reconstruction, maintenance, repair, and betterment of public highways, county roads, bridges and city streets; including the cost and expense of (1) acquisition of rights-of way, (2) installing, maintaining and operating traffic signs and signal lights, (3) policing by the state of public highways, (4) operation of movable span bridges, (5) operation of ferries which are a part of any public highway,  [[Orig. Op. Page 8]] county road, or city street;"

            RCW 46.68.070 states:

            "There is created in the state treasury a permanent fund to be known as the motor vehicle fund to the credit of which shall be deposited all moneys directed by law to be deposited therein.  This fund shall be for the use of the state, and through state agencies, for the use of counties, cities, and towns for proper road, street, and highway purposes."

            Distribution of monies to counties from the motor vehicle fund is provided for by RCW 46.68.120.  See, also, RCW 46.68.080.

            Section 5, chapter 82, Laws of 1943 (cf. RCW 36.82.070), provides in part:

            "Any monies paid to any county from the motor vehicle fund may be used by such county for the construction, alteration, repair, improvement or maintenance of the county raods of such county and bridges thereon and for wharves necessary for ferriage of motor vehicle traffic and therefore essential to the county road system, and for ferries, and for the acquiring, operating and maintaining of machinery, equipment, quarries, or pits for the extraction of materials and for the cost of establishing county roads, acquiring rights of way therefor in the manner provided by law and expenses for the operation of the county engineering office and for any other proper road purpose. . . ."

            Thus, disbursements from the motor vehicle fund into the county road fund may be used for the "construction, alteration, repair, improvement or maintenance of the county roads" and for "any other proper road purpose."

            The Eighteenth Amendment to the Washington Constitution was designed to insure that the motor vehicle fund would be used exclusively for highway purposes.  Automobile Club Etc. v. Seattle, 55 Wn. (2d) 161, 166, 346 P. (2d) 695 (1959);State ex rel. Bugge v. Martin, 38 Wn. (2d) 834, 232 P. (2d) 833 (1951).

             [[Orig. Op. Page 9]]

            InAutomobile Club Etc. v. Seattle, supra, the court said at page 168:

            ". . . it was not the intent of the people, in adopting the eighteenth amendment, tocurtail or impede the road program of this state.  On the contrary, we think it was the intention of the people to limit expenditures from the motor vehicle fund to those things which would directly or indirectly benefit the highway system. . . ."

            InWashington State Highway Comm. v. Pacific Northwest Bell Tel. Co., 159 Wash. Dec. 228 [[59 Wn. 2d 216]], 367 P. (2d) 605 (1961), the test of benefit was applied and it was held that relocating utility facilities would not benefit the highway system and therefore is not a highway purpose.  In theAutomobile Club case, supra, it was held that payment of a tort judgment resulting from negligent operation of a draw bridge is not a highway purpose, saying at pages 168 and 169:

            ". . . Such an expenditure could in no way contribute toward the safety, administration, or operation of our highway system, but, rather, would establish a precedent that could result in substantially decreasing those funds reserved for such purposes.  This, we feel, would be a detriment rather than a benefit to our highway system."

            The court must mean by "benefit" to the highway system that which would make the highway system more useful to its users.  See,Keck v. Manning, 231 S.W. (2d) 604 (Ky. 1950).  (It could be argued thathighways would benefit from less use, but see,Opinion of the Justices, 324 Mass. 746, 85 N.E. (2d) 761 (1949), to the effect that highway funds may not be used for rapid transit systems which would relieve congestion on the highways.)  InChlopeck Fish Co. v. Seattle, supra, our court said at page 327:

            ". . . It is true, also, that neither the city nor any one else can lawfully erect a stand-pipe, or a steam engine, or an electric light plant, or a water tank, or a city hall, or a dumping board, or any other structure of like character in the streets, as held by other authorities cited by appellants; but there is a wide difference between these things and the construction of a wharf by the city at a street termination, leading into navigable  [[Orig. Op. Page 10]] water giving public access thereto, and in aid of general traffic between land and water.  This is not only not inconsistent with the use of the street as a public highway, but is actually in aid of such use."

            The Oregon court said inMacleay Estate Co. v. Curry County, 127 Ore. 356, 272 Pac. 263 at page 265 (1928):

            ". . . The Port Orford-Ellensburg Road and the Witness Rock-Salthouse Road serve two purposes in common; both afford a means of access to and egress from the river at Witness Rock, and both reach the Bagnell Ferry Road.  Since we have held that the Witness Rock Road is not a public way, the traffic which now resorts to it will be diverted to the road in question, and thus the latter's usefulness will be increased.  In fact, it will thus become the only public approach to the river at Witness Rock. . . ."

            See, Opinion of Attorney General to Washington State Highway Commission, May 1, 1953 [[AGO 53-55 No. 26]], a copy of which is attached.  There this office advised that motor vehicle funds could be used for relocating the visitor's information center at Vancouver, if the commission determined that a benefit to the highways, such as increased tourist traffic, would result.

            The transportation of boats on trailers and other vehicles is now a common use of the highways of this state.  To aid these highway users, and perhaps increase this use, by improving waterfront road ends would seem to benefit the highway system and to be a highway purpose within the meaning of Amendment Eighteen of the Constitution of the State of Washington.

            We accordingly conclude that county road funds, including monies paid to the county from the motor vehicle fund, may be used to improve waterfront street ends so that they are useful for launching boats, and we answer question two in the affirmative.

             [[Orig. Op. Page 11]]

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General