§ 3.12 - Abandonment and Vacation

• Jurisdiction: Washington

§3.12 ABANDONMENT AND VACATION

In most jurisdictions, abandonment or vacation may terminate the rights of the public in a dedicated property. 39 Am. Jur. 2d Highways, Streets, and Bridges §153 (2008 & Supp. 2010).

(1) Abandonment

Abandonment must be proved by clear, unequivocal, and decisive evidence. Shew v. Coon Bay Loafers, Inc., 76 Wn.2d 40, 50, 455 P.2d 359 (1969). The party asserting abandonment bears the burden of proof. Tuschoff v. Westover, 65 Wn.2d 69, 73, 395 P.2d 630 (1964), overruled on other grounds by Munden v. Hazelrigg, 105 Wn.2d 39, 711 P.2d 295 (1985).

The primary element to establish abandonment is the intent to relinquish or part with the right or rights claimed to be abandoned. Shew, 76 Wn.2d at 50; Manello v. Bornstine, 44 Wn.2d 769, 772, 270 P.2d 1059 (1954). Intent to abandon may be implied from the acts of the parties. Martinson v. Publishers Forest Prods. Co., 11 Wn. App. 42, 50-52, 521 P.2d 233 (1974).

Comment: Cities organized under the Optional Municipal Code (code cities) have the express authority to abandon property. RCW 35A.11.020. There is a question whether other cities may abandon property without express authority and whether abandonment may be used to relinquish public rights in property in jurisdictions in which a specific vacation process is described in a statute See City of Seattle v. Hinckley, 67 Wash. 273, 121 P. 444 (1912) (holding that the statutory method of vacation is exclusive but abandonment may be asserted in certain instances).

Abandonment generally requires evidence of something more than failure to use or care for the property. See Roundtree v. Hutchinson, 57 Wash. 414, 419, 107 P. 345 (1910) (finding that nonuse of a dedicated burial ground was insufficient to prove abandonment). In many jurisdictions nonuse for a long period of time is a factor indicating intent to abandon. City of Carlinville v. Castle, 52 N.E. 383 (Ill. 1898); see, e.g., Porter v. Int'l Bridge Co., 93 N.E. 716 (N.Y. 1910). Courts should consider the duration of nonuse to determine whether an abandonment occurred. J.E. Macy, Annotation, Loss of Private Easement by Nonuser or Adverse Possession, 25 A.L.R. 2d 1265 (1952); see also McCue v. Bellingham Bay Water Co., 5 Wash. 156, 31 P. 461 (1892).

Practice Tip: Even if nonuse is insufficient to establish abandonment, it may be evidence that the public authorities never accepted the dedication. See §3.6(1), above.

Abandonment can occur if the specific use for which the property is dedicated becomes impossible or the object of the use totally fails. See Johnston v. Medina Improv. Club, 10 Wn.2d 44, 116 P.2d 272 (1941) (referring to an Ohio case that concluded dedicated property reverted back to the original owners because circumstances had rendered the dedication purpose impossible).

(2) Vacation

Vacation of dedicated property requires direct action of public authorities. 39 Am. Jur. 2d Highways, Streets, and Bridges §149 (2008 & Supp. 2010). The state may delegate its plenary power to vacate when such authority is exercised in the general public interest. See, e.g., London v. City of Seattle, 93 Wn.2d 657, 611 P.2d 781 (1980); Fry v. O'Leary, 141 Wash. 465, 252 P. 111 (1927).

Statutes delegating the power of vacation differ widely. First-class cities have the power to vacate streets, alleys, avenues, sidewalks, wharves, parks, and other public grounds. RCW 35.22.280(7). Code cities can vacate public ways, real property of all kinds, waterways, structures, or any other improvement or use of real property. RCW 35A.11.020. The specific power to vacate is not enumerated for second-class cities and towns; however, RCW 35.23.452 grants second-class cities and towns the right to otherwise dispose of real estate. Specific statutory provisions for various types of vacations also delegate the vacation power to all cities and towns. See §3.12(2)(a)(i) & (iv), below. Query whether the differences in the statutes affect the rights of the cities to vacate property.

Caveat: This section discusses relevant state statutes and case law relating to the vacation process. Also consult local ordinances, if any, of the city, town, or county in which the property to be vacated is located.

(a) Specific statutory procedures

The statutory procedures for abandonment and/or vacation of dedicated property are discussed below.

(i) Vacation of city or town streets and alleys

The procedure for vacation of streets and alleys, or their parts, located within the boundaries of a city or town, is described in RCW 35.79.010-050. These procedures also apply to code cities. RCW 35A.58.020.

A vacation process begins with a petition by more than two-thirds of the owners of an interest in the real estate abutting the part of the street or alley sought to be vacated or by resolution of the legislative body. RCW 35.79.010. If a proper petition is submitted, the legislative authority by resolution fixes a date for hearing and determination on the petition, which date must be not less than 20 and not more than 60 days following the date the resolution is passed. Id.

The city or town clerk must post the notice of the pendency of the petition or the passage of a resolution to vacate in three of the most public places in the city or town, and a like notice must be posted in a conspicuous place on the street or alley sought to be vacated. RCW 35.79.020. In addition, if a legislative body commences the process by a resolution, all owners, or reputed owners, of all lots, tracts, or parcels abutting upon the part of the street or alley sought to be vacated must receive notice by mail addressed as shown on the rolls of the county treasurer. Id. The notice must provide that there is a petition to vacate a part of the street or alley and state the time and place of the hearing. Id.

Comment: Presumably, if the vacation is initiated by the legislative body, the notice must so state. If legislative authority initiates the process by resolution and 50 percent of the property owners who are required to be given notice file with the clerk, prior to the hearing, a written objection to the proposed vacation, the legislative body is prohibited from proceeding with the resolution. Id. Absent such a written objection, a hearing will commence in accordance with the same procedures as a hearing on a petition. The hearing on a petition must be held on the date fixed (or at the time the hearing may be adjourned to), and may be held before the legislative authority or before a committee that reports its finding to the legislative authority. RCW 35.79.030. If the legislative authority determines to grant the petition or any part thereof, the city or town is authorized to vacate the street or alley, or portion thereof, by ordinance. Id. The clerk of the legislative authority must record a certified copy of the ordinance in the office of the auditor of the county in which the vacated land is located. Id. There are limitations on the authority of a city or town to vacate a street or alley abutting a body of water. No city or town may vacate a street or alley, or any part thereof, if any portion of the street or alley abuts on a body of salt or fresh water unless (1) the vacation is sought to enable the city, town, port district, or state to acquire the property for port purposes, boat moorage or launching sites, park, viewpoint, recreational, educational, or other public purposes; or (2) the street or alley is not used for any of these purposes and is not suitable for these purposes; or (3)...