Could a Washington county reserve a road easement over tax-title property before selling it?

Plain-English summary

The Washington Attorney General concluded in 1964 that a county could reserve a road easement over tax-title land it planned to sell, but only after it acquired the easement by eminent domain or purchase under RCW 84.64.320. The county could not treat tax-title property like its own proprietary land and simply dedicate part of it to public use.

The opinion explained that land acquired at a general tax sale for lack of other bidders was held in trust for the state and taxing bodies entitled to the tax proceeds. Either condemnation for a road or a purchase of the easement under the tax-title sale statute would compensate those beneficiaries for the interest taken. The AG read the statute to permit a sale of an easement, not only a fee interest.

Currency note

This opinion was issued in 1964. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a county reserve a road easement when selling tax-title land?
A: Yes, according to the AG, after acquiring the easement through condemnation or a purchase under RCW 84.64.320.

Q: Why was a simple reservation insufficient?
A: The opinion said the county held tax-title land in trust for the taxing beneficiaries. Acquiring the easement through one of the stated methods compensated their interest.

Q: Could the county buy an easement rather than the whole parcel?
A: The AG reaffirmed an earlier reading of RCW 84.64.320 allowing sale of an interest less than full ownership, including an easement.

Background and statutory framework

The opinion relied on Sasse v. King County for the trust character of tax-title land and Commercial Waterway Dist. No. 1 v. King County for the distinction from proprietary county land. It identified condemnation for county roads under RCW 36.85.010 and a negotiated sale to a governmental agency for public purposes under RCW 84.64.320 as the two acquisition routes.

Citations and references

The opinion cites RCW 84.64.320, RCW 36.85.010, Sasse v. King County, and Commercial Waterway Dist. No. 1 v. King County.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/counties-roads-easements-tax-sale-property-county-easement-reserved

Original opinion text

Attorney General John J. O'Connell

COUNTIES ‑- ROADS ‑- EASEMENTS ‑- TAX SALE OF PROPERTY ‑- COUNTY EASEMENT RESERVED.

A county may reserve county road easements over tax title property which it proposes to sell provided that the right to the easement is first acquired under the county's power of eminent domain or by purchase pursuant to RCW 84.64.320.

December 30, 1964

Honorable James P. McNally
Prosecuting Attorney
Pend Oreille County
Newport, Washington

Cite as: AGO 63-64 No. 133

Dear Sir:

By letter previously acknowledged you have asked whether a county may reserve county road easements over tax title property it proposes to sell.

In our opinion it may, provided that the right to the easement is first acquired under the county's power of eminent domain or by purchase pursuant to RCW 84.64.320.

ANALYSIS

It is well-established in our state that a county which purchases land at a general tax sale, for want of other purchasers, takes title in trust for the state and the various taxing bodies entitled to tax revenue from the lands. Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938). A county therefore may not devote tax title property to public use in the same way that it can devote its proprietary lands to public use. Commercial Waterway Dist. No. 1 v. King County, 10 Wn. (2d) 474, 117 P. (2d) 189 (1941).

Generally speaking there are two methods whereby a county can acquire the right to devote tax title property to public use.

The first method is by exercise of the county's right of eminent domain. Tax title property may be condemned by a county for public purposes. AGO 43-44 p. 133 (1943) [[to Prosecuting Attorney, Lewis County on September 2, 1943]]. Such property may, therefore, be condemned for county road purposes. RCW 36.85.010.

[[Orig. Op. Page 2]]

The second method whereby a county can acquire the right to devote tax title property to public use is statutory. RCW 84.64.320 expressly authorizes the sale of tax title property "to any governmental agency for public purposes by private negotiation." We have in the past concluded that a county is a "governmental agency" within the meaning of the act. Opinion to Ferry county prosecuting attorney, January 9, 1948 [[1947-48 OAG 77a]]. We have also concluded in the past that a sale may be made of an interest less than a fee, such as an easement. OAG 51-53-159 (1951) [[Opinion No. 51-53-159 to Prosecuting Attorney, Pend Oreille County on October 31, 1951]]. We adhere to those rulings now.

Under each of the methods we have given, the action is consistent with the pre‑existing [[preexisting]]trust because the beneficiaries of the trust receive compensation for their interest in the trust property. We conclude, therefore, that the board of county commissioners has the authority to reserve county road easements over tax title property it proposes to sell, provided the county exercises such right through its power of eminent domain or by purchase under the provisions of RCW 84.64.320, supra.

We trust that the foregoing information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HAROLD T. HARTINGER
Assistant Attorney General