COUNTIES - ROADS - LIMITATIONS ON VACATION

COUNTIES - ROADS - LIMITATIONS ON VACATION

(1) Section 7, chapter 185, Laws of 1969, Ex. Sess. (RCW 36.87.130) limiting the power of a county to vacate a county road which abuts on a body of salt or fresh water, applies to a county road, a lateral edge of which touches or encroaches upon a body of salt or fresh water, as well as to one whose terminal end touches upon such a body of water.

(2) A county road abuts on a body of salt or fresh water if it touches or encroaches upon the line of ordinary high tide or high water as marked by the line of vegetation.

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                                                               November 30, 1970

Honorable Myron H. Freyd
Prosecuting Attorney
Kitsap County
823 Bay Street
Port Orchard, Washington 98366

                                                                                                                 Cite as:  AGO 1970 No. 26

Dear Sir:
            We are writing in response to your recent letter asking for our construction of § 7, chapter 185, Laws of 1969, Ex. Sess. (RCW 36.87.130).  We paraphrase your questions as follows:

            (1) Does § 7, chapter 185, Laws of 1969, Ex. Sess., limit the vacation of a county road, a lateral right of way line of which touches upon a body of salt or fresh water or does this statute apply only to a county road whose terminal ends touch upon a body of salt or fresh water?

            (2) Assuming the statute is to be construed to limit the vacation of roads whose lateral edges touch upon a body of salt or fresh water, what is to be considered the boundary of a "body" of salt or fresh water as the term is used in the statute?

            In answer to your first question, we believe that the statute  [[Orig. Op. Page 2]] applies to a county road, a lateral edge of which touches or encroaches upon a body of salt or fresh water, as well as to one whose terminal end touches upon such a body of water.  The answer to your second question is found in the analysis below.

                                                                     ANALYSIS

            Section 7, chapter 185, Laws of 1969, Ex. Sess. (now codified as RCW 36.87.130), to which your questions refer, provides as follows:

            "No county shall vacate a county road or part thereof which abuts on a body of salt or fresh water unless the purpose of the vacation is to enable any public authority to acquire the vacated property for port purposes, boat moorage or launching sites, or for park, viewpoint, recreational, educational or other public purposes, or unless the property is zoned for industrial uses."1/

            Question (1):

            Your first question suggests a possible construction of this statute which would interpret the word "abuts" to mean the touching of a body of wateronly at the terminal end of a county road right of way; conversely, the touching of a body of water by a lateral right of way line, it is suggested, would more appropriately be described as "adjoining" the body of water.  However, we do not consider such an interpretation to be correct in view of the manner in which the words "abuts" or "abutting" have been uniformly used and construed in this state both in statutes and in court decisions.

            So far as we can determine, the word "abuts" has been consistently used in this state, as it applies to streets or roads, to include both touching at a terminal end and being contiguous on lateral boundaries.  As for the word "abutting," perhaps the most common usage of this word may be found in  [[Orig. Op. Page 3]] the very body of law to which your questions refer; i.e., the law relating to vacation of streets and roads.

            For example, the standing of property owners to enjoin the vacation of a street or to recover damages as the result of such a vacation normally has hinged upon whether they were "abutting" owners.  Thus, it was said in the early case ofFreeman v. Centralia, 67 Wash. 142, 143, 120 Pac. 886 (1912):

            "It is contended that appellants have a right to the use of the streets upon which their property abuts for its entire length, and are entitled to compensation as abutting owners, if any part of the street is vacated.  Authority upon the particular proposition advanced is divided; but this court has, in several cases, aligned itself with the great majority of American courts in holding that a property owner does not come within the rule of compensation unless his property abuts upon or touches that part of the street which is actually vacated, or a special or peculiar damage is made to appear; or, to state the proposition in its elementary form, unless his injury differs in kind rather than in degree from that suffered by the general public. . . ."

            Accord:  Ponischil v. Hoquiam Sash, Etc. Co., 41 Wash. 303, 83 Pac. 316 (1906);Mottman v. Olympia, 45 Wash. 361, 88 Pac. 579 (1907);Kemp v. Seattle, 149 Wash. 197, 270 Pac. 431 (1928); State v. Wineberg, 74 Wn.2d 372, 444 P.2d 787 (1968).

            InHensler v. Anacortes, 140 Wash. 184, 186, 248 Pac. 406 (1926), the court, in determining whether a certain lot was subject to an assessment, construed the word "abut" as used in the foregoing statute to refer to property that faces or abuts the marginal lines of the street being improved.  In thus concluding, the court quoted with approval the following dictionary definitions of the word "abut":

            "Century Dictionary defines abut,

            "'To touch at the end; be contiguous; join at a border or boundary; terminate; rest:   [[Orig. Op. Page 4]] withon, upon, or against before the object; as, his landabutsupon mine; the building abuts on the highway; the bridge abutsagainst the solid rock.'

            "1926 Merriam Series, Webster's New International Dictionary defines abut,

            "'To project; to terminate or border; to be contiguous; -withon,upon, or against; as, his land abutson the road.  Usuallyabut implies contact, but this is not always so.  To end at; to border on; to reach or touch with an end; as, two lotsabutting each other.'"

            Our statutes relating to the procedures for vacating city streets have similarly referred to property "abutting" in the sense of lateral touching.  See, RCW 35.79.010, et seq.

            Of particular note is the usage of the word "abutting" in RCW 79.01.448.  This statute, granting preferential rights to upland owners to purchase tide or shore lands, provides in part:

            "The owner or owners of land abutting or fronting upon tide or shore lands . . ."

            Clearly the word "abutting" in the statute is used in the sense of "contiguous to."

            In another area where the word "abutting" has been similarly used, the Washington court has consistently held that the fee title to a public street or road remains in "abutting" landowners, with the public acquiring only a right of passage with powers and privileges necessarily implied in the granting of an easement.  Finch v. Matthews, 74 Wn.2d 161, 443 P.2d 833 (1968); Puget Sound Alumni of Kappa Sigma, Inc. v. Seattle, 70 Wn.2d 222, 422 P.2d 799 (1967); State ex rel. Patterson v. Superior Court, 102 Wash. 331, 173 Pac. 186 (1918).

            Finally we may note that more recent statutes providing for the establishment of limited access highways have referred to the "abutting owner's right of access" and "abutting property" clearly in the sense of property which is contiguous or touching along the lateral edge of the highway right of way.  See, RCW 47.52.080.  Our court in construing these statutes  [[Orig. Op. Page 5]] and discussing access rights of owners of land along the highway, conventionally has referred to land abutting upon the highway.  State v. Calkins, 50 Wn.2d 716, 314 P.2d 449 (1957); State v. Besselman, 55 Wn.2d 524, 348 P.2d 406 (1960);Deaconess Hosp. v. Highway Commission, 66 Wn.2d 378, 403 P.2d 54 (1965).

            The foregoinglegislative and judicial uses of the word "abutting" are by no means exhaustive; however, they fairly represent the uniform meaning which has been given to the word by our legislature and courts.  Therefore, consistent with this usage, it is our opinion that as used in chapter 185, the term "abuts" means contiguous, both on the lateral edges of a county road right of way and the terminal end of such a right of way.

            Question (2):

            Your remaining question assumes the foregoing answer to your initial question, and asks:

            ". . . what is to be considered the boundary of a 'body' of salt or fresh water as the term is used in . . ." § 7, chapter 185, Laws of 1969, Ex. Sess.?

            The apparent purpose of the legislature in enacting this statute2/ was to preserve for the public, for recreational or other purposes,existing access to bodies of salt or fresh water.  This purpose has perhaps been brought into sharper focus by the recent court decision upholding the public's right of navigation (and rights corollary thereto) on navigable bodies of water.  SeeWilbour v. Gallagher, 77 W.D. 2d 307 - P.2d - [[77 Wn.2d 306, 462 P.2d 232]](1969).  Also to be noted areBach v. Sarich, 74 Wn.2d 575, 445 P.2d 648 (1968); and Snively v. Jaber, 48 Wn.2d 815, 296 P.2d 1015 (1956), recognizing the rights of riparian owners and their licensees to use the entire surface of anonnavigable lake for recreational and other purposes.

            In considering your question in the light of this purpose, we may first observe in passing that in the case of navigable bodies of water there are certain statutorily established boundaries between uplands and tidelands (on navigable tidal waters) or shore lands (on navigable fresh waters).  See, RCW 79.01.020 79.01.024, which refer to the "line of ordinary high  [[Orig. Op. Page 6]] tide" and RCW 79.01.029 79.01.032, which speak of the "line of ordinary high water."  In the case of nonnavigable waters, on the other hand, since the contiguous owners on such waters own the bed of the lake, there is no upland and shore land boundary as such.

            For the purposes of this opinion, however, we are not so much concerned with these legal boundaries which may exist between the ownership interests of competing property owners as we are with legislative intent in terms of the precise subject at hand; i.e., the extent of a limitation upon the powers of a county to vacate any county road abutting on a body of salt or fresh water.  Consistent with the apparent purpose of this legislation the preservation of public access to bodies of salt or fresh water it is our opinion that the statute should be read as referring to any county road, the lateral or terminal right of way of which touches or encroaches upon the line of ordinary high tide or high water as marked by the line of vegetation a line which is more explicitly described inHarkins v. Del Pozzi, 50 Wn.2d 237, 240, 310 P.2d 532 (1957), as the "line which the water impresses on the soil by covering it for sufficient periods to deprive the soil of vegetation . . ."  A line inland from this line would not provide usable access to water from the county road since the intervening strip of land, if privately owned, would preclude the public from gaining legal access from the road to the water, except perhaps during unusually high tide or exceptionally high water.  On the other hand, it is not likely that a county road will be located below this line of vegetation unless constructed on a structure.