DUTY TO MAINTAIN CITY STREETS WHICH HAVE BEEN DULY DESIGNATED AS A PART OF PRIMARY AND SECONDARY STATE HIGHWAYS

DUTY TO MAINTAIN CITY STREETS WHICH HAVE BEEN DULY DESIGNATED AS A PART OF PRIMARY AND SECONDARY STATE HIGHWAYS.

The state has the mandatory duty to maintain the streets, but is not required to do any construction or maintenance work beyond the maximum width of the traveled roadway, including curbs and gutters, if any.  The duty of maintaining the remainder of the right of way rests upon the city.

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                                                                 August 16, 1950

Mr. W. A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                                      Cite as:  AGO 49-51 No. 322

Dear Sir:

            We have your letter of August 1, 1950, in which you ask the following question:

            Calling our attention to section 5, chapter 220, Laws of 1949, you ask as to the responsibility for the expense of slide removal and damage to adjacent property caused by landslides on city streets which have been duly designated as a part of primary and secondary state highways.

            The conclusions reached may be summarized as follows:

            The state has the mandatory duty to maintain the streets, but is not required to do any construction or maintenance work beyond the maximum width of the traveled roadway, including curbs and gutters, if any.  The duty of maintaining the remainder of the right of way rests upon the city.

                                                                     ANALYSIS

            Your letter first calls our attention to section 5, chapter 220, Laws of 1949, and then states:

            "Your opinion is requested as to the responsibility for the expense of slide removal and also for damages to adjacent property caused by landslides under the following circumstances:

            "First:  At some time in the past, longer ago than ten years, the city, or perhaps the county, has constructed, within an area now included within the corporate limits, a roadway along the waterfront.  To construct the roadway it was necessary to excavate material and construct a cut on the upland side of the roadway.  Because of the steep banks the roadway was constructed quite narrow and contained only provision for traffic lanes for vehicular traffic, an extremely narrow shoulder and a minimum width roadside drainage  [[Orig. Op. Page 2]] ditch.  No area was excavated for parking strip or sidewalk and no curbs exist.  The roadway design has the characteristics of a rural highway rather than an urban street.

            "Periodically since its construction landslides of some consequence have occurred in the cuts, extending over the traveled way, and have heretofore been removed by the city as a part of its street maintenance operation.

            "The roadway in question has been designated by the Director of Highways as forming a part of the route of a secondary state highway and the burden of construction and maintenance transferred to the state.  Additional slides have occurred along the route of this highway.

            "The origin of the slides has not yet extended beyond the right of way limits, but such a danger exists with possible damage to private property and improvements.

            "Second:  Conditions are identical with those in the first example except that the design is a typical urban street containing, in addition to vehicular traffic lanes and parking lanes, the following:  curbs and gutters, parking strip and pedestrian sidewalk.  The distance from the curb line to the property line is a normal ten feet."

            Section 5, chapter 220, Laws of 1949 (6450-61 Rem. Supp. 1949) was an amendment of section 1, chapter 250, Laws of 1945, which in turn was an amendment of section 61, chapter 187, Laws of 1937.  When this section was first adopted in 1937, it was quite a short section and simply provided in substance that the Director of Highways should determine what city streets shall form a part of the route of any primary state highway and should certify the same in duplicate to the State Auditor and Clerk of the city or town affected.  The 1945 law broadened the scope of the 1937 law so as to include secondary state highways, and also authorized, but did not necessarily require, the Director of Highways to expend any state funds available therefor for construction and maintenance and for the acquisition of rights of way.  The 1949 law was much broader and more comprehensive.  It reads in part as follows:

            "The Director of Highways shall determine what city streets, together with bridges thereon and wharves necessary for use for ferriage of motor vehicle traffic in connection with such streets, if any, in any incorporated cities and towns shall form a part of the route of any primary or secondary state highway through such incorporated cities [[Orig. Op. Page 3]] and towns, and, between the first and fifteenth days of April of each year, shall certify by brief description, in duplicate, one copy to the State Auditor and one copy to the clerk of each incorporated city and town, which streets, together with bridges thereon and wharves, if any, in such city or town are designated as forming a part of the route of a primary or secondary state highway through such city or town; and all such streets, including curbs and gutters and street intersections and such bridges and wharves, shall be constructed and maintained by the Director from any state funds available therefor.

            "The jurisdiction control and duty of the state and city and town with respect to said streets shall be as follows:"

            Then follow fifteen separately lettered subdivisions.

            From the wording of your letter it is apparent that subdivision (0) can have no bearing upon our problem because of the time element involved.  You state that this particular highway was constructed a longer period ago than ten years.  Therefore, there has been no opportunity for the state and the city or town to make any mutual agreement as contemplated in subdivision (0).  If you have made such a mutual agreement, either in this case or in any other, our opinion herein should be disregarded, for in such case the rights of the state on the one hand or the city or town on the other would doubtless be controlled by such mutual agreement.

            Subdivision (b) provides:

            "The city and town shall exercise full responsibility for and control over any such street beyond the curbs, and if no curb is installed beyond the portion of the highway used for highway purposes;"

            From the above history of the 1937, 1945, and 1949 laws, it is to be noted that the 1949 law, for the first time, places the apparent mandatory duty upon the Director of Highways to construct and maintain the city streets in question.  Such mandatory duty, however, would appear not to extend beyond the maximum limits of the curbs and gutters, or beyond the portion of the highway used for highway purposes if there be no curbs or gutters.  That is, the Director has the mandatory duty to maintain the streets, but is not required to do any construction or maintenance work beyond or outside of the total maximum width of the traveled roadway, including the curbs and gutters, or beyond the portion of the highway used for highway purposes if there be no curbs or gutters.

             [[Orig. Op. Page 4]]

            It would, therefore, seem to follow that the duty of maintaining the remainder of the right of way beyond the curbs and gutters, or if there be no curbs or gutters, then beyond the portion of the highway used for highway purposes, rests upon the city.  In the case of a cut on the upland side of the roadway, such duty would likewise rest upon the city.  If in the original acquisition of the highway through condemnation or otherwise, sufficient width was not acquired so as to give the proper slope to the bank, no responsibility would rest upon the Director of Highways nor upon the state.  Nor would any responsibility for slides rest upon either the Director of Highways or the state.  Nor would any responsibility for damage, either because of the steep bank or because of the fact that a sufficient width was not originally acquired, either by condemnation or otherwise, rest upon either of them.

            While the question is a close one, we are inclined to believe that the duty of clearing the highway in the event of slides would rest upon the city rather than upon the state, although as to this particular matter, we express no opinion at this time, believing that such matters can be satisfactorily adjusted between the state on the one hand and the city or town on the other in each individual case.

            We cannot believe that the characteristics of the highway as to whether it is "a rural highway rather than an urban street" as stated in your first example, or whether it is of a "design of a typical urban street" as stated in your second illustration, is controlling.  What we have said heretofore would, we believe, be equally applicable to your second question submitted.

Yours very truly,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General