What is the Nature of a Public Right-of-Way?

I often come across misconceptions that local government officials have regarding the nature of a city or county right-of-way – the improved part termed a “street” if located in a city and a “road” if located in the unincorporated county. These misconceptions center on the issue of ownership.

The general rule:

As a general rule, a city or county right-of-way is an easement for public travel. (An easement is a privilege or a right, distinct from ownership, to use in some way the land of another.) So, typically, a city or county does not own the fee title to the property underlying the public right-of-way; the abutting property owners have that fee title, and that title usually extends to the centerline of the right-of-way. (Because this is a “general rule,” there are always exceptions.) The right-of-way easement generally extends beyond the improved roadway and includes sidewalks, if any, and parking strips (the area between the sidewalk and the paved street or road).

While this general rule about the nature of the public right-of-way as an easement may not be clearly set out in statute statutes, it is clearly set out in numerous Washington court decisions stretching back over a century and a half to territorial days. For example:

• In Rowe v. James, 71 Wash. 267, 270 (1912), the state supreme court noted the general rule that “in the absence of a governing statute or a reservation in the grant, the owner of the land on each side of the street owns the fee to the center of the street, subject only to the easement in the public.” The court further noted that “We have uniformly held that a city acquires only an easement in a street in consequence of a dedication.”
• In Finch v. Matthews, 74 Wn.2d 161, 167-68 (1968), the state supreme court explained:

 

Since Burmeister v. Howard, 1 Wash. Terr. 207 (1867), this court has not departed from the rule established in that case, that the fee in a public street or highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement.

 

• More recently, in Kiely v. Graves, 173 Wn.2d 926, 934 (2012), the state supreme court addressed the dedication of land for a public highway, stating that “Normally, the interest acquired by the public in land dedicated as a highway is only an easement”; the court then quoted from the state Bar Association’s Real Property Deskbook:

Any deed to a local government specifically for highway, right of way, or any public purpose could be interpreted as a dedication conveying an easement only. If the intent is to grant a fee interest, that intent should be clearly stated and the use should be unrestricted or, if the use is a condition, the condition should be clearly stated with a specific right of reversion.

Because a public right-of-way is generally an easement, when that right-of-way is vacated, the fee title to the property underlying that right-of-way – held by the abutting property owners - becomes “unemcumbered” by that easement. What the vacation accomplishes is the extinguishment of the right-of-way easement. Thus, one of the statutes governing street vacations, RCW 35.79.040 says, “If any street or alley in any city or town is vacated by the city or town council, the property within the limits so vacated shall belong to the abutting property owners, one-half to each.” Unfortunately, this language is somewhat clumsy because it implies that, prior to the vacation, the abutting property owners did not own the property within the right-of-way easement - which, as I explained above, is generally not the case. The state supreme court in London v. Seattle, 93 Wn.2d 657, 666 (1980), states the legal effect of a street vacation better than does the statute: “The general rule is that upon vacation of a street, the public easement is extinguished and the abutting property owners regain unencumbered title to the center of the street.” (My emphasis.)

If a city or a county actually owns the fee title to the property underlying the right-of-way that is vacated, the city or county would still own it after the vacation, despite the statutory language in RCW 35.79.040. Though, the city or county could then sell the property to the abutting property owners, since it would presumably no longer have use for that property.

Exceptions to the general rule:

Note that I have been talking about city and county rights-of-way; I have not been talking about state highway rights-of-way. And that is because the state typically owns the fee title to the property underlying the right-of-way for a state highway. See chapter 47.12 RCW.

Another exception to the general rule involves acquisition of the fee title to the property, either when a property owner gives or sells property to a city or county for use as a public right-of-way with the clear intent to convey fee title (see the quote from the Real Property Deskbook above) or when a city or county, by exercise of – or by threat of - its condemnation (eminent domain) authority, specifically acquires the fee title to the property for use as a right-of-way. It’s my understanding that some cities have a policy of acquiring the fee title when condemning property for right-of-way purposes, rather than acquiring just an easement. I’m not sure why, but there must be a reason.

There are also exceptions, when the right-of-way is an easement, to the corollary general rule that the abutting property owners own fee title to the centerline of the right-of-way. In some circumstances, the abutting property owner on only one side of the right-of-way may own the fee title to the property underlying the entire width of the right-of-way. That was the circumstance in London v. Seattle, 93 Wn.2d 657, 666-67 (1980):

The general rule, however, is subject to control by the particular circumstances of the case when one abutting owner is  shown to have had no fee interest in the street and another the entire fee therein. In that instance, the abutter that had no underlying fee interest does not take to the center of the street upon its vacation.

Final thoughts

Keep in mind that, even though abutting property owners may own the fee title to the property underlying the public right-of-way, they can only use that property, if at all, subject to the easement for public travel. They cannot obstruct such public travel over the right-of-way - either vehicular travel on the improved roadway or pedestrian travel on the sidewalk. So, for example, a number of cities require their approval before property owners plant trees in the parking strips, to ensure that such trees are not of the type whose roots could damage the street or sidewalk or interfere with utility lines that are permitted within the right-of-way.

If the right-of-way has not been opened and so is not improved, obstruction of public travel is, of course, not an issue, and the property owner is not subject to the same restrictions as when it is open and improved. Typically, property owners can use the unopened, unimproved right-of-way as they can the rest of their property, but subject to the possibility of it being opened and improved at some point in the future.

There a many nuances to this issue that I haven't touched on, but I just wanted to present the general rules here. And I hope this post has provided some clarity - if that was needed - to this issue of the nature of a public right-of-way.