EASEMENTS ‑- PERPETUAL ‑- WHETHER ASSESSABLE AS TAXABLE PROPERTY TO GRANTOR OR GRANTEE ‑- LANDS ‑- PERPETUAL EASEMENTS ‑- WHETHER ASSESSABLE AS TAXABLE PROPERTY TO GRANTOR OR GRANTEE ‑- TAXATION

EASEMENTS ‑- PERPETUAL ‑- WHETHER ASSESSABLE AS TAXABLE PROPERTY TO GRANTOR OR GRANTEE ‑-  LANDS ‑- PERPETUAL EASEMENTS ‑- WHETHER ASSESSABLE AS TAXABLE PROPERTY TO GRANTOR OR GRANTEE ‑-TAXATION

1. Land subject to a perpetual easement should be assessed as taxable property to the owner of the fee with an adjustment in valuation because of the easement.

2. For purposes of 1955 taxes, a perpetual easement should be taken into consideration in assessing the land subject thereto if granted prior to January 1, 1954, and should not be considered if granted subsequent to said date.

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                                                                    July 16, 1954

Honorable John N. Leavitt
Prosecuting Attorney
Okanogan County
Okanogan, Washington                                                                                                    Cite as:  AGO 53-55 No. 285

Dear Sir:

            You have requested the opinion of this office on the following questions:

            (1) Where the Federal government has acquired perpetual easements on private land with the right, power and privilege to overflow, flood and submerge portions thereof, should the land subject to said easements be assessed as taxable property to the grantor or to the grantee?

            (2) Where said easements are in existence but reserve to the grantor the right to use the property throughout the year 1954 or portions thereof, for the  [[Orig. Op. Page 2]] purpose of 1955 taxes should the land subject to such easements be assessed and taxed as of their condition and right of occupancy during 1954 or should the existence of the easements be taken into consideration?

            In answer to the first question, it is our opinion that land subject to a perpetual easement should be assessed as taxable property to the owner of the fee with an adjustment in valuation because of the easement.

            As to the second question, such an easement should be taken into consideration in fixing the valuation of the land if granted prior to January 1, 1954, and should not be considered if granted subsequent to said date.

                                                                     ANALYSIS

            Turning to the first question, the fact that these easements are perpetual does not relieve the grantor from having the taxes assessed to him.  The fee of the lands to be submerged remains in the private owner and such lands are assessed as taxable property to said owner and not to the owner of the easements.  Of course, these easements, as such, are not taxable since they are property of the Federal government.

            The existence of the easements and the resulting increase or decrease in the value of the land will have to be considered in making the assessment.  It may be observed in this connection that the easement agreements, (copies of which you sent with your request) with certain restrictions, reserve in the grantor certain rights and privileges to use the lands flowed.

            In regard to the second question, if easements were granted prior to January 1, 1954, their existence should be taken into consideration in determining the market value of the lands for assessment purposes.  Property should be assessed on the basis of its fair market value, RCW 84.40.030;Bellingham Com. Hotel Company v. Whatcom County, 190 Wash. 609.  Real property is listed and assessed every year with reference to its value on the 1st day of January in the year in which it is assessed, RCW 84.40.020.  Thus, if the easements had been granted prior to that date, the market value of the land would be affected on the day as of which the value for assessment is to be determined.  The right of the grantor to occupy and use the property in 1954 would be an element to consider in the valuation.

             [[Orig. Op. Page 3]]

            However, if the easements were granted subsequent to January 1, 1954, the lands should be assessed and taxed to the grantor at their full value without consideration being given to the existence of the easements, because the value was not affected on the date the statute fixes for basing the assessment.

            We hope the foregoing will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

HENRY W. WAGER
Assistant Attorney General