COUNTIES ‑- ROADS AND BRIDGES ‑- DUTY TO MAINTAIN BRIDGES ‑- DUTY OF INTERFERER WITH PUBLIC RIGHT OF WAY TO MAINTAIN

COUNTIES ‑- ROADS AND BRIDGES ‑- DUTY TO MAINTAIN BRIDGES ‑- DUTY OF INTERFERER WITH PUBLIC RIGHT OF WAY TO MAINTAIN

The county is obliged to repair and maintain all bridges, by whomsoever constructed, which lie on the right of way of an established county road.  Such obligation does not extend, however, to public roads within the county, which have not been duly established as county roads by resolution of the board of county commissioners, or which have not been made part of the system of county roads by operation of law.

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                                                                November 8, 1957

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County
Ellensburg, Washington                                                                                                              Cite as:  AGO 57-58 No. 129

Dear Sir:

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

            1. Is a county under a duty to repair, reconstruct, and maintain bridges across reclamation district ditches where:

            (a) The bridges were originally built on established county roads;

            (b) the county road was not established beyond the place of intersection with the reclamation ditch or canal?

            2. If it is the duty of the reclamation district to repair, construct, and maintain such bridges, does any liability attach to the county for its failure to do so?

            We answer question 1 (a) in the affirmative and questions 1 (b) and 2 in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            RCW 36.75.020 (chapter 82, Laws of 1943, chapter 187, Laws of 1937) reads as follows:

            "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."  (Emphasis supplied.)

            RCW 36.75.050 (chapter 73, Laws of 1943, chapter 187, Laws of 1937) reads in part as follows:

            "The board shall by resolution, and not otherwise, order the survey, establishment, . . . of county roads; . . ."  (Emphasis supplied.)

            RCW 36.75.070 (chapter 361, Laws of 1955) reads as follows:

            "All public highways in this state, outside incorporated cities and towns are not designated as state highways, which have been used as public highways for a period of not less than seven years, where they have been worked and kept up at the expense of the public, are county roads."

            RCW 36.75.080 (chapter 361, Laws of 1955) reads as follows:

            "All public highways in this state, outside incorporated cities and towns and not designated as state highways, which have been used as public highways for a period of not less than ten years are county roads:  Provided, That no duty to maintain such public highway for any liability for any injury or damage for failure to maintain such public highway or any road signs thereon shall attach to the county until the same shall have been adopted as a part of the county road system by resolution of the county commissioners."  (Emphasis supplied.)

            RCW 90.28.030 (Laws of 1890, page 711) reads in part as follows:

            "Any person constructing a ditch across a public highway shall construct a good substantial bridge, . . . over the watercourse where it crosses the road, . . ."

             [[Orig. Op. Page 3]]

            The Washington Code, under RCW 36.75.050, makes the designation and establishment of a county road discretionary with the board of county commissioners.  However, when considered with RCW 36.75.020, it is clear that once a county road is established, the duty of the county to maintain it is mandatory.  It is equally clear that where the county erects a bridge along a county right of way, it is the duty of the county to maintain such bridge.  Berglund v. Spokane County, 4 Wn. (2d) 309, 103 P. (2d) 355 (1940).  By RCW 90.28.030, there is created a duty on the part of an interferer with a public right of way to construct a bridge, but there is no statutory material dealing with the duty to maintain such a bridge.  Hence, we must turn to the common law.  RCW 4.04.010.

            The common law rule is stated in 8 Am.Jur. 934, Bridges, §§ 34 and 35.  The general rule as stated in § 34 is as follows:

            "The duty to maintain and repair a bridge erected by a person to avoid interference with the easement of the public devolves upon him. . . ."

            However, § 35, which is devoted to exceptions to the general rule, contains language as follows:

            ". . . the rule has long since been laid down that if a bridge is of public utility and is used by the public, the public must repair it, though built by an individual; . . ."

            There are no Washington decisions on this point.  The rule was laid out lucidly inCity of Chicago v. Sanitary District of Chicago, 404 Ill. 315, 89 N.E. (2d) 35 (1949), in which the sanitary district had constructed drainage channels, interfering with city streets.  It constructed bridges and maintained them for a period of years.  The City of Chicago subsequently commenced an action for mandamus to require the sanitary district to repair and replace certain bridges.  The court, rejecting an Illinois statute of dubious validity, decided the case on common law principles.  The precise question before the court was whether the sanitary district was forever bound, at common law, to illuminate, operate, maintain, repair, and from time to time replace the bridges.

            The court responded in the negative, and stated in part as follows:

            ". . . the duty of a city to maintain its public streets and thoroughfares . . . extends to bridges . . .  A bridge is simply a component part of a public thoroughfare. . . .

            ". . .

             [[Orig. Op. Page 4]]

            ". . .  The public roadways spanning the sanitary district channels are an integral part of the public thoroughfares of the city . . . the city has jurisdiction and control over public highway bridges.  The right to exercise jurisdiction and control over the bridges is accompanied by the corresponding duty to maintain and repair the bridges. . . ."

            The court then favorably cited People ex rel. Kurtz v. Meyer, 328 Ill. 122, 159 N.E. 205 (1927), in which it was held that upon erection of a bridge and the restoration of the highway to its former condition of usefulness to the public, the district had completely discharged its obligation and had no further duties with respect to the bridge.

            Washington has held on several occasions that a bridge across a stream is an integral part of the highway along which it is erected.  State v. Vantage Bridge Co., 134 Wash. 568, 236 Pac. 280 (1925); Berglund v. Spokane County, supra; Lucas v. Phillips, 34 Wn. (2d) 591, 209 P. (2d) 279 (1949).

            Accordingly, it is our opinion that as regards bridges, by whomsoever constructed, which become a part of the county road system, either by establishment under RCW 36.75.020, by prescriptive use and public maintenance under RCW 36.75.070 (1955 Supp.), or by adoption by resolution after public use only under RCW 36.75.080 (1955 Supp.), it is the duty of the county to maintain them, under the common law, and under RCW 36.75.020.  Thus, question 1 (a) is answered in the affirmative.

            Since RCW 36.75.020 and RCW 36.75.050 must be read together, it is manifestly the intention of the legislature to limit the application of the common law rule that acceptance of a public highway by a county may be informal.  This is accomplished by specific language to the effect that no county road may be created except by resolution of the board of county commissioners.  Further indicia of this legislative intent is found in the proviso in RCW 36.75.080 (1955 Supp.),supra, stating, in effect, that even where the public has gained a prescriptive right to use land as a public highway, there is no duty or liability on the part of the county until the road is established as a part of the system of county roads by resolution of the board.

            The common law rule that acceptance by the county of a road and the attendant duty of maintenance may be informal has not been entirely abrogated, however.  [[Orig. Op. Page 5]] RCW 36.75.070 (1955 Supp.) codifies the common law rule to a certain extent by providing in part that "where (public highways) have been worked and kept up at the expense of the public" for a period of not less than seven years, they are county roads, with no further action required by the county commissioners.  It must be pointed out that to come within the purview of this statute, it is not necessary that the amount of care taken by the county be extensive.  The rule is laid out inStevens County v. Burrus, 180 Wash. 420, 427, 40 P. (2d) 125, 128 (1935).  Since no facts are given in your request in this regard, we cannot be definitive, but may simply point out the existence and possible effect of this statute on any course of action you might desire to take.

            Thus, subject to the exception stated in RCW 36.75.070 (1955 Supp.), the common law rule stated in section 1 of this opinion would not be applicable to those bridges constructed by the reclamation district which are not, or have not become by operation of law, a part of the established system of county roads.  Accordingly, question 1 (b) is answered in the negative.

            With reference to question No. 2, the authority charged with the maintenance and repair of a bridge must use ordinary care to keep the bridge reasonably safe.  Berglund v. Spokane County, supra.  But the county has been held liable for personal injuries only where it aided in the construction of a defective bridge, Potter v. Whatcom County, 138 Wash. 571, 245 Pac. 11 (1926); or where the county physically maintained the bridge and controlled it as part of the public highway,Barr v. Cowlitz County, 127 Wash. 14, 220 Pac. 6 (1923); or where the bridge was negligently maintained for the purposes for which it was intended.  Berglund v. Spokane County, supra; Lucas v. Phillips, supra.

            However, the duty on the part of the county to maintain a bridge does not arise unless a highway of which the bridge is a part has been established as a county road by the board of county commissioners, either under RCW 36.75.050 or 36.75.080 (1955 Supp.), or by application of the common law rule codified in RCW 36.75.070 (1955 Supp.).  Therefore, in the absence of a duty to maintain, no liability may attach to the county for the failure of the municipal corporation, such as a reclamation district, to maintain its bridges in proper order.  For this reason, question No. 2 is answered in the negative.

            We hope that the foregoing analysis will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JAMES R. CUNNINGHAM
Assistant Attorney General