Bulletin: WA000041

EXHIBIT 1

WIDTH OF RIGHT OF WAY WHICH MAY BE CLAIMED
WHEN ROAD ESTABLISHED BY PRESCRIPTION

The legislature frequently ads to the State Highway System a road which has formerly been a county road. Establishing the width of this right of way becomes vital to the maintenance section and is even more important if and when it becomes necessary to widen or relalign the right of way.

When such a road is added to our system, a search is made of the county records and copies secured of any surveys which exist as well as copies of any instruments by which the county acquired title.

Where the entire way has been acquired by recorded deeds, waivers or condemnation actions, no question as to the width arises, but there are a great many miles of country roads which have been established without the benefit of a formal conveyance to the county.

The principle which governs the width of a road established by prescription is well set out in the leading case on the point - 109 Wn 116 In the Matter of the Extension of West Marginal Way. In this case the City of Seattle sought to widen existing West Marginal Way (a former county road) to 100 feet. In many areas no deeds had been secured and the old road existed only by prescription. The city took the position that the prescriptive right of way was 60 feet in width by reason of the fact that this was the width set out in the petition and county commissioners order which established the road. Sixty feet was also the maximum width allowed for county roads under the statute which was in effect during the prescriptive period. The property owners argued that the city could only claim title to the actual width of the traveled way, which in this case was only 10 to 15 feet wide. The Supreme Court upheld the city's position and established that "The County actually laid out and surveyed a road 60 feet in width. We think, under the authorities cited, and the facts, which are not disputed, that the county acquired by prescriptive right the whole of the 60 foot road, notwithstanding the fact that but a portion thereof was actually used."

The period of uninterrupted public use required to establish a road as a public highway is seven years, where the way is maintained by the county (RCW 36.75.070) and 10 years if there is only a public use and no-maintenance done by the county. (RCW 36.75.080)

The statutory widths of county roads are governed by the following statutes:

Sec. 7, Act of Jan. 11, 1869 (Territorial Law)

"County roads shall be 60 feet in width unless the county commissioners shall, upon prayer of the petitioners for same, determine a less number of feet in point of width."

Legislature of 1881 (Section 3119, p. 578)

Chap. 19, Sec. 1, Laws of 1890

Provided that county roads shall be established as being not less than thirty feet nor more than sixty feet in width.

Chap. 173, Sec. 3, Laws of 1925, Ex. Sess.

Designated a width of not less than 30 feet nor more than 120 feet.

Chap. 187, Sections 14 and 17, Laws of 1937.
(RCW 36.86.010)

County road rights of way designated as being 60 feet in extremities and 30 feet on each side of the center line of the road, unless the commissioners elect a different width.

To summarize, then, determination of the R/W width of a county road involves the following steps:

1. A search for deeds, waivers, condemnation actions or other acquisition instruments. (The headquarters R/W office maintains a complete index to all know conveyances covering any road which is now or ever has been a part of the State Highway System. An IOC to headquarters will bring a prompt report on the status of any given section of R/W.)

2. In no acquisition instrument exists, a search should be made of the county commissioner's records to determine whether or not the road in question was established pursuant to petitions and a county commissioner's order. If such an order is found, the width set out in the order or in the petition, if followed by the proper period of public usage, will establish the highway to that width. (Presuming that the commissioners selected a width within the limits allowed by law.)

3. If there is neither a deed nor an order establishing the road, inquiry will have to be made of the "old-timers" in the neighborhood of the road to determine approximately when the road was opened and whether or not it has been used by the public for the required uninterrupted period. If this period is less than 10 years, check with the county engineer to see if the county has been maintaining the road so that the shorter 7-year statute might apply. When the dates of such period are established, then the minimum width which we can claim can be determined from a study of the table of statutes. In no case would the width we can claim ever be less than the width of the traveled way plus the maintained ditches and slopes.

4. In considering the effect of use of a part of a prescriptive right of way by the abutting owner (such as fencing, rockeries, lawn, cultivation, etc.), a recent case (57 Wn. 2nd, 196 - Van Sant v. Seattle) clarifies the principles involved. Any use of the right of way after the prescriptive period has run would have no effect whatsoever. On the other hand, the erection of a fence or other indication of a claim of title by use, during the prescriptive period would indicate a limit to the implied dedication and the prescriptive R/W line would no doubt be limited at the line of use by the abutter.

It is obvious that even with all of these guiding principles in mind, that many cases will still be difficult to resolve and it is urged that in controversial cases, the facts be forwarded to Olympia for a determination by the Attorney General.

Reprinted with permission of the Washington State Department of Transportation, Paul E. Dole, Right of Way Agent, 7/26/99.