Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1)

MRSC gets a lot of inquiries about street rights-of-way. Over the years, we have touched on specific aspects of rights-of-way on our website and in blog articles. In this two part series, I will try to cover the fundamentals of rights-of-way and the duties of local governments and abutting owners. This article will cover right-of-way fundamentals and the issues presented by use of rights-of-way for travel. The next article will cover sidewalks, utilities, trees and unused portions of the right-of-way.   

Fundamentals: What is a right-of-way and what can be done with it?

It is a common misconception that rights-of-way are owned by local government. In fact, the general rule is that city or county rights-of-way are easements for public travel and other secondary street purposes (such as utilities). This is the reason why streets, when vacated, generally become the property of the abutting owners to the centerline of the right-of-way. Here are links to more detailed information on the nature of right-of-way and street vacation. 

Despite its easement status, municipalities have broad authority to manage and regulate the rights-of-way. That authority stems from the police power under the Washington State Constitution (Article XI, Section 11), as well as statutes such as RCW 35A.11.020, which provides code cities with broad power “in regard to the acquisition, sale, ownership, improvement, maintenance, protection, restoration, regulation, use, leasing, disposition, vacation, abandonment or beautification of public ways.” Other municipal entities also have broad authority: counties (RCW 36.75.050); first class cities (RCW 35.22.280(7) and (8)); second class cities (RCW 35.23.440(33)); and towns (RCW 35.27.370(4)).

Washington cases have observed that the primary purpose of a right-of-way is public travel. However, municipalities may authorize other incidental uses of rights-of-way, including private uses, which do not unreasonably interfere with public travel. See, e.g., Winkenwerder v. City of Yakima, (upholding ordinance allowing placement of advertising on top of parking meters). The circumstances under which such incidental uses may be authorized is a legislative decision for the municipality, not a judicial question. Additional information can be found on MRSC’s Right-of-Way Use Permit webpage. 

Use of right-of-way for travel—municipal duties

A municipality has a duty to exercise ordinary care in the construction, repair, and maintenance of its public streets to keep them in a reasonably safe condition for ordinary travel. Keller v. City of Spokane. In addition to motor vehicles, this duty extends to bicycles and pedestrians. The Keller case ruled that while a municipality is not an insurer, its duty extends to all right-of-way users, even those whose negligence may have contributed to their injuries.    

Sometimes dangerous conditions, such as a potholes (see Figure 1), may occur in a street. If the dangerous condition was not caused by the municipality, the municipality may still be liable for it if: (a) it has notice of the dangerous condition; and (b) reasonable opportunity to correct it. O’Neill v. City of Port Orchard. Notice of the dangerous condition may be actual or constructive. Actual knowledge may occur when a city crew observes a dangerous condition in the right-of-way or when a citizen reports it to the city. “Constructive knowledge” means that a municipality should have known of a dangerous condition, even if it did not have actual knowledge. In some cases, constructive knowledge may be inferred from the amount of time a dangerous condition exists prior to an accident. Nguyen v City of Seattle.

Municipalities also need to be aware that they can face liability for roadside vegetation that creates sight obstructions for right-of-way users (see Figure 2). This is the case even if the vegetation is not part of the roadway. In Wuthrich v. King County, the Washington Supreme Court held that “whether a condition is inherently dangerous does not depend on whether the condition exists in the roadway itself.” In other words, a municipality can be held liable for sight obstructions created by vegetation that is not in the improved portion of the roadway. MRSC published a blog article about the Wuthrich case shortly after it was decided last year.

Municipalities should have procedures for documenting and responding to dangerous right-of-way conditions in timely fashion. With respect to vegetation, many municipalities use “trim letters” to inform abutting property owners of their responsibility to keep the right-of-way free from sight obstructions. Based on Wuthrich and the speed with which blackberries grow in this region, municipalities should also monitor and take necessary action in areas where vegetation may create sight obstructions.

Please stay tuned for Part 2 of this blog series!

Questions? Comments?

If you have questions about rights-of-way or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me directly.