Did a Washington road agency owe a second payment when it franchised utility use of a public-land right of way?

Plain-English summary

In 1966, the Washington Attorney General said that after a state highway agency or county obtained a road right of way over public land and paid the compensation legally required for that grant, it could franchise secondary use of the right of way to a utility without a second payment to the commissioner of public lands. The opinion addressed power, communications, gas, water, and sewer facilities. (Official opinion)

The answer assumed the initial right of way had already been fully compensated. The AG relied on statutes authorizing the highway agency and county commissioners to grant franchises and on decisions recognizing utility facilities as secondary highway uses.

Currency note

This opinion was issued in 1966. 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

Was another payment due to the public lands commissioner for a utility franchise?
No, if the legally required compensation for the original road right of way had already been paid under the facts assumed by the AG.

Which public agencies could grant the franchises discussed?
The opinion addressed the state highway agency and county commissioners as grantees of road rights of way.

What uses did the opinion treat as secondary highway uses?
It discussed power, telephone, telegraph, water, gas, and sewer facilities.

Background and statutory framework

RCW 79.01.340 governed the initial public-land road right of way. RCW 47.44.010 and RCW 36.55.010 governed franchises by the highway agency and counties. The opinion separated compensation for the original property interest from a later franchise within that paid-for right of way.

Citations and references

• The official opinion assumes “such compensation as is legally required in the case of the initial right of way grant ... has been paid by the grantee.”
• It concludes that “no statutory or constitutional requirement for future compensation exists.”

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/offices-and-officers-state-commissioner-public-lands-franchises-highways-counties

Original opinion text

Attorney General John J. O'Connell

OFFICES AND OFFICERS ‑- STATE ‑- COMMISSIONER OF PUBLIC LANDS ‑- FRANCHISES ‑- HIGHWAYS ‑- COUNTIES ‑- NECESSITY FOR ADDITIONAL COMPENSATION WHERE RIGHT OF WAY GRANTEE OF PUBLIC LANDS GRANTS SECONDARY FRANCHISE USE.

Where the commissioner of public lands, pursuant to RCW 79.01.340, has granted a right of way across public lands to the state highway department, or to a board of county commissioners, for the establishment and construction of a road or street, and has received legally required compensation therefor, the right of way grantee may, in turn, grant a franchise to a public utility for power lines, telephone and telegraph lines, gas lines, water mains, or sewer lines without the payment of additional compensation to the commissioner.

October 10, 1966

Honorable Bert L. Cole
Commissioner of Public Lands
Public Lands-Social Security Building
Olympia, Washington

Cite as: AGO 65-66 No. 111

Dear Sir:

By letter previously acknowledged you have requested an opinion of this office on a question which we have paraphrased as follows:

Where the commissioner of public lands, pursuant to RCW 79.01.340, has granted a right of way across public lands to the state highway department, or to a board of county commissioners, for the establishment and construction of a road or street, and has received legally required compensation therefor, may the right of way grantee, in turn, grant a franchise to a public utility for power lines, telephone and telegraph lines, gas lines, water mains, or sewer lines without the payment of additional compensation to the commissioner?

We answer your question in the affirmative for the reasons set forth in our analysis.

ANALYSIS

RCW 79.01.340 provides as follows:

[[Orig. Op. Page 2]]

"Any county or city or the United States of America or state agency desiring to locate, establish and construct a road or street over and across any public lands of the state of Washington, or any county desiring to construct any wharf on tide or shore lands, shall by resolution of the board of county commissioners of such county, or city council or other governing body of such city, or proper agency of the United States of America, or state agency, cause to be filed in the office of the commissioner of public lands a petition for a right of way for such road or street, setting forth the reasons for the establishment thereof, accompanied by a duly attested copy of a plat made by the county or city engineer or proper agency of the United States of America, or state agency, showing the location of the proposed road or street with reference to the legal subdivisions, or lots and blocks of the official plat, or the lands, over and across which such right of way is desired, the amount of land to be taken and the amount of land remaining in each portion of each legal subdivision or lot or block bisected by such proposed road or street.

"Upon the filing of such petition and plat the commissioner of public lands, if he deem it for the best interest of the state to grant the petition, shall cause the land proposed to be taken to be inspected and shall appraise the value of any timber thereon and notify the petitioner of such appraised value.

"If there be no timber on the proposed right of way, or upon the payment of the appraised value of any timber thereon, to the commissioner of public lands in cash, or by certified check drawn upon any bank in this state, or postal money order, except for all rights of way granted to the department of natural resources on which the timber, if any, shall be sold at public auction or by sealed bid, the commissioner may approve the plat filed with the petition and file and enter the same in the records of his office, and such approval and record shall constitute a grant of such right of way from the state."

[[Orig. Op. Page 3]]

In our opinion dated April 14, 1964 [[to Bert L. Cole, Commissioner of Public Lands]], written jointly to you and to the director of the department of highways, we considered the situation of school lands (i.e., those public lands of the state which are held in trust for the support of common schools and other public educational institutions, as explained therein) and concluded that where a right of way is granted across such lands, the grantee must likewise pay compensation to the department of natural resources for the benefit of the permanent school fund.1/ The amount of compensation, we said, is that which a private owner could claim as just compensation for the taking and damaging of his property.

For purposes of the present opinion, it is assumed that such compensation as is legally required in the case of the initial right of way grant (either under the express provisions of RCW 79.01.340, supra, or under the principles enunciated in our earlier opinion) has been paid by the grantee. Your question is whether the right of way grantee may, in turn, grant a franchise to a public utility for power lines, telephone and telegraph lines, gas lines, water mains, or sewer lines without the payment of additional compensation.

The governing statute, in the case of the state highway commission, is RCW 47.44.010, which provides, in material part:

"The highway commission shall have the power to grant franchises to persons, associations, private or municipal corporations, the United States government or any agency thereof, to use any state highway for the construction and maintenance of water pipes, flume, gas pipes, telephone, telegraph and electric light and power lines and conduits, trams or railways, and any other such facilities. . . ."

[[Orig. Op. Page 4]]

In the case of a board of county commissioners, the statute is RCW 36.55.010, which reads:

"Any board of county commissioners may grant franchises to persons or private or municipal corporations to use the right of way of county roads in their respective counties for the construction and maintenance of waterworks, gas pipes, telephone, telegraph, and electric light lines, sewers and any other such facilities."

The case law of the state of Washington clearly recognizes that a right of way may be devoted to a primary and secondary use, the primary use being the convenience of the public travel. See,State ex rel. York v. Board of County Commissioners, 28 Wn.2d 891, 897, 898, 184 P.2d 577 (1947), and cases cited therein. But other uses are recognized. In McCullough v. Interstate Power & Light Co., 163 Wash. 147, 149, 300 Pac. 165 (1931), the court stated:

". . . The easement acquired by the public in a highway includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway. . . ."

This principle has been recognized and applied for specific uses. The following uses have received judicial recognition in this state: power lines, telephone and telegraph lines, water mains, gas lines and sewers. See,State ex rel. Telegraph Co. v. Spokane, 24 Wash. 53, 63 Pac. 1116 (1901);McCullough v. Interstate Power & Light Co., supra; State ex rel. York v. Board of County Commissioners, supra; Northwest Supermarkets v. Crabtree, 54 Wn.2d 181, 338 P.2d 733 (1959).

Where the commissioner of public lands has granted a right of way across public lands to the state highway department, or to a board of county commissioners (pursuant to RCW 79.01.340, supra) and has been paid whatever compensation is required by law for this grant (the assumed condition of the present question), it follows, in our opinion, that the [[Orig. Op. Page 5]] right of way grantee then has full power to do with this right of way whatever the grantee's governing statutes (i.e., RCW 47.44.010,supra, and RCW 36.55.010, supra) permit‑-in terms of franchise grants for secondary use. Since the right of way grantee has already paid full compensation for the property interest which it has taken, no statutory or constitutional requirement for future compensation exists.

We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JAMES C. HANKEN
Assistant Attorney General

*** FOOTNOTES ***

1/This principle is presently before our state supreme court on an appeal from the judgment of the Thurston county superior court declaring void a statute granting rent-free use of trust lands for state park purposes. Cole v. Odegaard, supreme court No. 39133. However, in view of the conclusion we reach herein‑-i.e., that in any event no additional compensation is required of a franchise grantee‑-the court's decision in that case will have no bearing upon our answer to the question you have asked.