DAMAGE TO VEGETATION OCCASIONED BY COUNTY WEED ERADICATION ON RIGHT OF WAY

DAMAGE TO VEGETATION OCCASIONED BY COUNTY WEED ERADICATION ON RIGHT OF WAY

The county is not liable to an abutting owner for damages to his trees or other vegetation occasioned by the roots thereof extending into the right of way and coming in contact with a chemical placed on the right of way for weed eradication, when the county does not have definite knowledge that damage will ensue.

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                                                                December 3, 1953

Honorable Robert E. Conner
Prosecuting Attorney
Chelan County
Wenatchee, Washington                                                                                                              Cite as:  AGO 53-55 No. 180

Attention:  !ttMr. George F. Potter,

            Deputy Prosecuting Attorney

Dear Sir:

            Your recent letter indicated that the county is using a chemical to control weeds along the county rights of way, and that the chemical used might injure plant life located on property bordering the county roads.  Your direct question concerns the liability of the county should the abutting owner's trees or other vegetation be damaged by reason of their roots extending into the right of way and coming into contact with the chemical.

            Our conclusions may be summarized as follows:

            The county is not liable to an abutting owner for damages to his trees or other vegetation occasioned by the roots thereof extending into the right of way and coming in contact with a chemical placed on the right of way for weed eradication when the county does not have definite knowledge that damage will ensue.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Your letter indicates that there is a possibility of damage to vegetation existing on abutting property by reason of the roots thereof extending into the right of way and coming in contact with the chemical being used to eradicate weeds, but apparently such a result is not presently a foregone conclusion.

            The control and eradication of weeds is not only a proper function pursuant to the care and maintenance of county roads, but in certain instances required by law.  See Title 17 RCW.

            If the right of way is owned in fee, the abutting owner would have no reserved right to maintain roots in the right of way.  If the county is merely the owner of an easement, the abutting owner would not necessarily have a right, by owning the underlying fee, to preclude the county from effectively executing its maintenance obligations.  The right of an owner not to be burdened by his neighbors' roots and tree branches has been discussed and approved in the cases of Gostina v. Ryland, 116 Wash. 228, 199 Pac. 298, andForbus v. Knight, 24 Wn. (2d) 297, 163 P. (2d) 822, among others.

            In the absence of gross, wanton, or wilful negligence, the county would not be responsible for the referenced damage.  See 3 C.J.S. 1330, section (d) bb.

            In this particular situation, inasmuch as the control of weeds would be a proper maintenance function, if the county has no direct knowledge that there will necessarily be resulting damage, we do not believe that the damages, if any, would be recoverable.  Texas & N. O. R. Co. v. Koderli, 33 S.W. (2d) 832.

            However, should the county have direct knowledge that the chemical will damage the abutting vegetation, the county would owe the owner the duty of apprising him of the intended application of the chemical so that the owner would have an opportunity to protect against the results.  SeeSt. Louis S. Fr. Co. v. Fletcher, 159 Ark. 344, 253 S.W. 12, 33 A.L.R. 445.

            You have indicated that the spray is to be used or is being used where orchards exist along the rights of way.  If the possibility of damage is appreciable, we suggest that this be carefully weighed against the benefits to be derived from the use of such a chemical.

             [[Orig. Op. Page 3]]

            We would also recommend that you consult the resident agent for the State Department of Agriculture or the office of the Director of Agriculture at Olympia concerning the possibility of damage by using whatever chemical is intended, and concerning the possibility that the use of such a chemical may have been restricted or banned by his order.

Very truly yours,

DON EASTVOLD
Attorney General

PAUL SINNIT
Assistant Attorney General