ROADS AND BRIDGES ‑- (1) FERRIES ‑- VACATION OR RECONSTRUCTION ‑- COUNTY COMMISSIONERS ‑- PROCEDURE ‑- (2) SNOW REMOVAL FROM PRIVATE DRIVEWAY AND ROADS ‑- OBLIGATION OF STATE OR COUNTY TO PLOW SNOW...

ROADS AND BRIDGES ‑- (1) FERRIES ‑- VACATION OR RECONSTRUCTION ‑- COUNTY COMMISSIONERS ‑- PROCEDURE ‑- (2) SNOW REMOVAL FROM PRIVATE DRIVEWAY AND ROADS ‑- OBLIGATION OF STATE OR COUNTY TO PLOW SNOW FROM ENTRANCES WITHIN RIGHTS-OF-WAY.

(1) The vacation of a ferry service by a board of county commissioners constitutes, and is subject to the same provisions governing, the vacation of a county road or bridge; however, if existing ferry service has been discontinued because the system has been destroyed or partially destroyed, the decision of the board of county commissioners, exercising its discretion, not to repair, reconstruct or re‑establish [[reestablish]]ferry service is not under existing law subject to any procedural requirements.

(2) There is no obligation on the part of the highway department or county road departments to plow out or remove snow deposited on entrances to private driveways or roads, within the public highway rights of way, during the plowing of county roads or state highways, provided that access rights have not been taken thereby.

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                                                                   April 21, 1964

Honorable Drennan "Mac" McElroy
State Representative, 2nd District
Ruby ‑ Route 2
Usk, Washington

                                                                                                              Cite as:  AGO 63-64 No. 100

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on two questions paraphrased as follows:

            (1) Can a board of county commissioners discontinue by resolution the operation of a county ferry without a public hearing after legal notice of such intent?

            (2) Is there any obligation on the part of the highway department or county road departments to remove snow deposited by the plowing of roads and highways on the entrances to private driveways within the public highway rights of way?

            We answer both questions in the negative as qualified and explained in the analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1):

            AGO 57-58 No. 32 [[to Prosecuting Attorney, Klickitat County on March 13, 1957]]expressed the opinion AGO 57-58 No. 32 expressed the opinion

            ". . . that a county can only escape the duty and liability of maintaining a county road, once a part of the county road system, by following the statutory vacation procedure.  To allow otherwise would deny to the public the safeguards incorporated in the vacation statutes.  39 C.J.S., Highways 121."

            Chapter 36.87 RCW sets forth procedures applicable to the vacation of roads and bridges.  Upon unanimous resolution by the board declaring its intention to vacate and abandon "a county road or any part thereof," the board "shall direct the county road engineer to report upon such vacation and abandonment."

            RCW 36.87.050 provides for notice of hearing upon the report for vacation and abandonment of a county road.

            RCW 36.87.060 states:

            "On the day fixed for the hearing, the board shall proceed to consider the report of the engineer, together with any evidence for or objection against such vacation and abandonment.  If the county road is found useful as a part of the county road system it shall not be vacated, but if it is not useful and the public will be benefited by the vacation, the board may vacate the road or any portion thereof."

            The conclusion that the hearing requirements apply to the vacation of a ferry derives from the determination that the operation of a county ferry is a county road or a part thereof.  "Both [toll bridges and ferries] form an integral part of the state highway system and cannot be regarded as separate subjects within Art. 2, § 19, of the state constitution [citing cases]" State ex rel. Toll Bridge v. Yelle, 61 Wn. (2d) 28, 40, 377 P. (2d) 466 (1962).  Ferries have been described as ". . . a continuation of the highway from one side of the water over which it passes to the other, . . ."Puget Sound Nav. Co. v.  [[Orig. Op. Page 3]] Dept. of Public Works, 156 Wash. 377, 383, 287 Pac. 52 (1930), (quoting Mayor, Etc. of New York v. Starin, 106 N.Y. 1, 12 N.E. 631).  "It must be granted that a public ferry is a part of a highway and necessarily subserves public interest and convenience. . . ."  State ex rel. Wash. Nav. Co. v. Pierce County, 184 Wash. 414, 423, 51 P. (2d) 407 (1935).  EvenUnited States v. Washington Toll Bridge Authority, 307 F. (2d) 330 (9 Cir. 1962), based a decision that the state authority must collect the federal transportation excise taxes not on a finding that the ferry operations constituted a proprietary government function, but on the theory that "the nature and extent of interference with, or burden upon, the State . . ." was too insignificant to make the federal tax inapplicable.  The circuit court readily admitted that ferries "provide a vital link in the State's highway system . . ." (at p. 332.)

            Just as they may be part of the state highway system, ferries, when owned or operated by or for the county, may be part of the county road system:

            "We think there can be no question but that . . . the ferries herein are a part of appellant's county road system . . ."  State ex rel. King County v. Murrow, 199 Wash. 685, 691, 93 P. (2d) 304 (1939).

            Woody v. Port of Seattle, 118 Wash. 163, 203 Pac. 59 (1922), involved a decision by a county to abandon the operation of a ferry.  There the court refused to interfere with the discretion exercised by the officers of the public corporation and the county.  The case appears to authorize abandonment or vacation of county ferry service when highway and other transportation improvements reduce the amount of traffic carried on the ferry, when the cost of operating the ferry has increased, and when a resort to a tax levy would be needed to meet the deficit arising from future operation.  While the court thus set forth substantive grounds justifying the county's decision to abandon, the opinion does not indicate that any issue had been raised as to the procedures which the county board must follow in making such a decision.

            The conclusion seems inescapable that the operation of a county ferry is a part of the county road system, and, as such, subject to the same statutory requirements with regard to vacation thereof as are other county roads.  The reference in RCW 36.87.010, to "a  [[Orig. Op. Page 4]] county road or any part thereof" (emphasis added) fortifies this conclusion in that even if a ferry were not deemed a "road" in some technical sense, the courts have consistently treated public ferries as integral parts of road systems.  The policy of allowing the public a voice at a hearing applies with equal force where the decision is to vacate ferry service as where it is to vacate some other county road.  It should not be presumed that the legislature did not intend chapter 36.87 RCW to apply to the decision of a board of county commissioners to vacate a ferry service.

            However, it appears from Resolution # 285, quoted in the newspaper clipping attached to your letter, that the Ruby ferry may have been previously destroyed, or partially destroyed.  If this is so, a new question arises, to-wit: Whether the discontinuance of the Ruby ferry was effectuated by the resolution of the board of county commissioners or by its prior destruction by natural causes.  As noted in 25 Am.Jur. Highways, § 111:

            "The ancient maxim, 'once a highway, always a highway,' which has frequently been quoted by the courts, is subject to many exceptions and qualifications. . . .  It has also been held that a highway is extinguished where the way is physically destroyed by natural causes, such as encroachment by the sea or a serious landslip, and that it is a question of degree whether in any particular case what has occurred amounts to destruction of the way or to damage only. . . ."

            State ex rel. Clark v. Seattle, 137 Wash. 455, 242 Pac. 966 (1926), 46 A.L.R. 253, held that an action in mandamus would not lie to compel the city to rebuild a bridge of which over fifty percent of the length had burned.  The case differed somewhat from the Ruby ferry situation in that the city had not "affirmatively declined to rebuild" the bridge, but even there it was "clear that it [had] not taken any active steps to do so."  The court recognized that the destruction of the bridge

            ". . . inconvenienced the inhabitants of quite a section of the city, who, since that time, have been compelled to use another  [[Orig. Op. Page 5]] bridge, less convenient and accommodating, over the valley. . . ." (p. 456.)

            The court stated that to

            ". . . reconstruct more than fifty per cent of the length of the bridge, . . . would be, in effect, the same as the construction of a new improvement, . . . a bridge, if one were in existence and might be termed a highway, does not exist; the safety of the public is not involved; there is no travel."  (pp. 458-459.)

            Further the court said:

            "While it appears that the city has in its general fund probably enough money to reconstruct the bridge, it was shown that all such funds, under the budget plan of the city, were required, and probably insufficient, to meet expenditures already contemplated and specified, and that there were no funds applicable or available for the present project.  We mention this, as having a bearing on the question of the matter of discretion in the municipal authorities, in their determination of whether this improvement shall be made."  (pp. 460-461.)

            InState ex rel. Good Hope Gold, Etc. Co. v. Morgan, 117 Wash. 214, 216, 200 Pac. 1085 (1921), the court refused to order the rebuilding of a road of which some three miles had been obliterated by flood:

            ". . . The determination of the question as to whether the improving of a road is necessary for public convenience necessarily involved the exercise of a discretion.  Among things which the commissioners should take into consideration would be the needs of other roads in the county, the cost of the improvement, the practicability of reconstructing the road, the extent of the use of it were it repaired, the amount of funds available, and so forth. . . ."

             [[Orig. Op. Page 6]]

            The legal duty to repair or reconstruct, even if it should be found to exist, is conditioned on the availability of funds for that purpose.  Cf. 46 A.L.R. 267 and 282.

            The language of the Resolution # 285 referred to the "re‑establishment" [[reestablishment]]of the Ruby ferry, an indication that the board viewed it as currently nonexistent.  While the procedures on vacation of a county ferry service are those provided for the vacation of other county roads, the decision to construct or to establish a ferry service is within the discretion of the boards of county commissioners.

            "Any countymay construct, . . . operate and maintain ferries. . . ." (Emphasis added.) RCW 36.54.010.

            No statutory provisions requiring a hearing or notice thereof have been found which apply to a decision by a board of county commissioners not to construct a ferry or not to re‑establish ferry service.

            We therefore conclude that the statutes require notice and hearing if the resolution of the board constitutes a decision to vacate existing county ferry service, but not if the decision is not to establish or re‑establish [[reestablish]]county ferry service where a prior ferry system has been destroyed or partially destroyed.

            Question (2):

            AGO 45-46 p. 53 [[1945-46 OAG 53 to Prosecuting Attorney, Lewis County on February 5, 1945]], held "that a county is under no duty to maintain, AGO 45-46 p. 53, held "that a county is under no duty to maintain, nor is it faced with responsibility for failure to maintain those parts of private driveways on county road rights-of-way leading off county roads into private property."  That opinion quoted from 42 A.L.R. 1281, as follows:

            "There seems, however, to be no judicial dissent from the principle announced in the reported case (GRIFFIN V. CHILLICOTHE, ante, 1273) that a municipality is under no duty to repair that portion of the highway without the portion of the traveled way, but within the limits of the street leading into a private way, in the absence of any dangerous  [[Orig. Op. Page 7]] defect so close to the traveled way as to endanger users thereof in the ordinary manner and for the purpose of which the road was intended."

            Noting that "This state is definitely in line with the general weight of authority, . . ." AGO 45-46 p. 53, 55, cited numerous Washington cases supporting the proposition that our ". . . court has steadfastly held to the rule that the county is not an insurer of travellers, for all that is necessary is to keep the travelled portion of the road in repair; . . ."  The logic of AGO 45-46 p. 53, applies to snow plowing as well as other forms of maintenance.  The rule that only an open passageway reasonably safe and convenient for travel is all that must be cleared through the snow, has often been applied in other courts, e.g.,Seeley v. Town of Litchfield, 49 Conn. 134 (1881).  The primary obligation on the appropriate authorities is to open such a passageway for travel.

            The snow which falls or is plowed onto highway rights-of-way is usually but a temporary inconvenience necessitated by the maintenance of the traveled portion of the road.

            ". . . It is the duty of a city to maintain streets and bridges, and such inconveniences as necessarily follow the performance of that duty are a burden the property owner must bear . . ."  Hieber v. Spokane, 73 Wash. 122, 125, 131 Pac. 478 (1913).

            "Larned v. Holt and Jeffery, 74 Wash. 274, held that neither the city nor its contractors, the defendants, should be liable for consequential damages flowing from a perfectly lawful undertaking, resulting in temporary inconveniences to the plaintiff."  Kimball v. State, Thurston County No. 29715, Memorandum Opinion on Demurrer, page 3 (1957).

            Thus, where snow is plowed from the highway into a driveway entrance within the right-of-way and that plowed snow merely results in a less convenient ingress or egress to the driveway, the state or county authorities would not be obligated to remove the snow plowed thereon.

             [[Orig. Op. Page 8]]

            TheKimball case,supra, implies that the obligation to remove the snow thus plowed does not even arise when that snow blocks access.  Plaintiffs there alleged that the state was liable for snow damages to certain structures which occurred when the owner was unable to enter his property to prevent them because snow had fallen on and was plowed from the state highway upon his normal entrance‑way, an abandoned portion of the highway within the state's right-of-way.  The court in theKimball case denied any liability on the part of the state in the following words:

            "It is alleged the State plowed only the new Highway 10 and deposited plowed snow on the route of the old highway, which the State had a legal right to do, and did not deposit any snow upon the Plaintiffs' property.  The inaccessibility of Plaintiffs' property in the winter of 1955-6 was due entirely to the excessive snowfall upon both highways‑-old and new‑-and not from any act on the part of the State.  This excessive snowfall was due to an act of Providence and the elements over which the State had no control.  This excessive snowfall and not its plowing from the new highway to the old highway was the fact which rendered the Plaintiffs' property inaccessible and it was the direct and proximate cause of Plaintiffs' damages."

            It should be noted, however, that this decision is based largely on a finding that the actions of the state were not the proximate cause of the injury to Kimball.

            Cases holding that the taking of access rights is compensable indicate that the state and counties may be obligated to remove snow which, because of their plowing operations, blocks entrances to private driveways.

            "It is well established that the owner of land abutting upon a conventional highway has an easement of ingress and egress.  This has been treated as a property right, attached to the land.  The courts unanimously hold that such an owner is entitled to just compensation if this easement or  [[Orig. Op. Page 9]] property right is taken or damaged.  SeeWalker v. State, 48 Wn. (2d) 587, 295 P. (2d) 328, and cases cited;State Highway Comm. v. Burk, 200 Ore. 211, 265 P. (2d) 783."  State v. Calkins, 50 Wn. (2d) 716, 718, 314 P. (2d) 449 (1957).  See, also,State ex rel. Sternoff v. Superior Court, 52 Wn. (2d) 282, 297, 325 P. (2d) 300 (1958), andFeuerborn v. State, 59 Wn. (2d) 142, 367 P. (2d) 143 (1961).

            However, unless, as indicated in the above cases, there has been a taking of access, mere inconvenience in access due to an edge of snow plowed on a driveway by the state or counties does not give rise to an obligation to remove the snow thus plowed.  The primary obligation is to clear a path for travel.

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROGER ALLYN GERDES
Assistant Attorney General