Miscellaneous Rights and Duties (Revised Code of Washington (RCW): Title 90 Water Rights—Environment; Chapter 90.28)

Chapter Chapter 90.2890.28 RCW RCW Chapter ListingChapter Listing | | RCW DispositionsRCW Dispositions MISCELLANEOUS RIGHTS AND DUTIESMISCELLANEOUS RIGHTS AND DUTIES SectionsSections 90.28.01090.28.010 Right to back and hold waters over roads, streets, and alleysRight to back and hold waters over roads, streets, and alleys——Procedure.Procedure. 90.28.02090.28.020 Right to back and hold waters over roads, streets, and alleysRight to back and hold waters over roads, streets, and alleys——RelocationRelocation—— Acquisition of rightsAcquisition of rights——Abandonment.Abandonment. 90.28.04090.28.040 Limitation on number of irrigation ditches across land.Limitation on number of irrigation ditches across land. 90.28.16090.28.160 Fencing across streams.Fencing across streams. 90.28.17090.28.170 Dams across streams.Dams across streams. 90.28.01090.28.010 Right to back and hold waters over roads, streets, and alleys—Procedure.Right to back and hold waters over roads, streets, and alleys—Procedure. The department of transportation may, in its sole discretion, grant to any person or corporation theThe department of transportation may, in its sole discretion, grant to any person or corporation the right, privilege, and authority to perpetually back and hold the waters of any lake, river, stream, slough, orright, privilege, and authority to perpetually back and hold the waters of any lake, river, stream, slough, or other body of water, upon or over any state, county, or permanent highway or road, or any street or alleyother body of water, upon or over any state, county, or permanent highway or road, or any street or alley within the limits of any town, or any part thereof, and overflow and inundate the same whenever thewithin the limits of any town, or any part thereof, and overflow and inundate the same whenever the director of ecology deems it necessary for the purpose of erecting, constructing, maintaining, ordirector of ecology deems it necessary for the purpose of erecting, constructing, maintaining, or operating any water power plant, reservoir, or works for impounding water for power purposes, irrigation,operating any water power plant, reservoir, or works for impounding water for power purposes, irrigation, mining, or other public use and shall so certify to the department of transportation. The decision of themining, or other public use and shall so certify to the department of transportation. The decision of the department of transportation, in the absence of bad faith, arbitrary, capricious, or fraudulent action, isdepartment of transportation, in the absence of bad faith, arbitrary, capricious, or fraudulent action, is conclusive. But the right shall not be granted until it has been heretofore or is hereafter determined in aconclusive. But the right shall not be granted until it has been heretofore or is hereafter determined in a condemnation suit instituted by the person or corporation desiring to obtain the right or rights in thecondemnation suit instituted by the person or corporation desiring to obtain the right or rights in the county wherein is situated that part of the road, highway, street, or alley so to be affected that the use forcounty wherein is situated that part of the road, highway, street, or alley so to be affected that the use for which the grant is sought is a public use, nor until there is filed with the clerk of the court in which thewhich the grant is sought is a public use, nor until there is filed with the clerk of the court in which the order or decree of public use was entered a bond or undertaking signed by the person or corporationorder or decree of public use was entered a bond or undertaking signed by the person or corporation seeking the grant, executed by a surety company authorized to do business in this state, conditioned toseeking the grant, executed by a surety company authorized to do business in this state, conditioned to pay all costs and expenses of every kind and description connected with and incident to the relocationpay all costs and expenses of every kind and description connected with and incident to the relocation and reconstruction of any such highway, road, street, or alley, the same to be of substantially the sameand reconstruction of any such highway, road, street, or alley, the same to be of substantially the same type and grade of construction as that of the highway, road, street, or alley to be overflowed or inundated,type and grade of construction as that of the highway, road, street, or alley to be overflowed or inundated, including any such relocation, reconstruction, and maintenance costs and expenses as may arise withinincluding any such relocation, reconstruction, and maintenance costs and expenses as may arise within a period of eighteen months after the new highway, road, street, or alley has been opened in its entiretya period of eighteen months after the new highway, road, street, or alley has been opened in its entirety to public travel, and also including any and all damages for which the state, county, city, or town may beto public travel, and also including any and all damages for which the state, county, city, or town may be liable because of the vacation of any such highway, road, street, or alley and the relocation thereof in theliable because of the vacation of any such highway, road, street, or alley and the relocation thereof in the manner provided herein and to save harmless the state, county, city, or town from the payment of themanner provided herein and to save harmless the state, county, city, or town from the payment of the same or any part thereof. The bond shall be in a penal sum of double the estimated amount of thesame or any part thereof. The bond shall be in a penal sum of double the estimated amount of the expenses, costs, and damages referred to above. In the case of a state highway the estimate shall beexpenses, costs, and damages referred to above. In the case of a state highway the estimate shall be made by the department of transportation. In case of a county road or permanent highway the estimatemade by the department of transportation. In case of a county road or permanent highway the estimate shall be made by the county legislative authority, and in the case of a street or alley of a town theshall be made by the county legislative authority, and in the case of a street or alley of a town the estimate shall be made by the city or town council. The bond shall be approved by the department ofestimate shall be made by the city or town council. The bond shall be approved by the department of transportation when the road to be affected is a state highway, and in all other cases by a judge of thetransportation when the road to be affected is a state highway, and in all other cases by a judge of the superior court in which the order or decree of public use was entered. In the condemnation suit the statesuperior court in which the order or decree of public use was entered. In the condemnation suit the state of Washington shall be made a party defendant when the road affected is a state highway. If the road is aof Washington shall be made a party defendant when the road affected is a state highway. If the road is a county road or permanent highway the county in which the road or permanent highway is situated shallcounty road or permanent highway the county in which the road or permanent highway is situated shall http://app.leg.wa.gov/RCW/default.aspx?cite=90.28 https://app.leg.wa.gov/RCW/default.aspx?cite=90.28 https://app.leg.wa.gov/RCW/dispo.aspx?cite=90.28 be made a party defendant, and when any street or alley in any town is affected the city or town shall bebe made a party defendant, and when any street or alley in any town is affected the city or town shall be made a party defendant. Any person or corporation may acquire the right to overflow as against themade a party defendant. Any person or corporation may acquire the right to overflow as against the owner of the fee in any such highway, road, street, or alley by making the owner of the fee or of any partowner of the fee in any such highway, road, street, or alley by making the owner of the fee or of any part thereof a party defendant in the condemnation suit provided for herein or by instituting a separatethereof a party defendant in the condemnation suit provided for herein or by instituting a separate condemnation suit against any such owner. The damages sustained by any such owner as a result of thecondemnation suit against any such owner. The damages sustained by any such owner as a result of the overflow of any such highway, road, street, or alley shall be determined as in other condemnation cases,overflow of any such highway, road, street, or alley shall be determined as in other condemnation cases, separate and apart from any damage sustained by the state, county, city, or town.separate and apart from any damage sustained by the state, county, city, or town. [ [ 1994 c 81 § 87;1994 c 81 § 87; 1984 c 7 § 385;1984 c 7 § 385; 1929 c 154 § 1;1929 c 154 § 1; 1927 c 202 § 1;1927 c 202 § 1; RRS § 7354­1.] RRS § 7354­1.] NOTES:NOTES: Eminent domain by corporations: Chapter Eminent domain by corporations: Chapter 8.208.20 RCW. RCW. Private ways of necessity: Chapter Private ways of necessity: Chapter 8.248.24 RCW. RCW. 90.28.02090.28.020 Right to back and hold waters over roads, streets, and alleys—Relocation—Right to back and hold waters over roads, streets, and alleys—Relocation— Acquisition of rights—Abandonment.Acquisition of rights—Abandonment. It shall be the duty of the department of transportation, if the road to be affected shall be a stateIt shall be the duty of the department of transportation, if the road to be affected shall be a state highway, or of the county legislative authority of the county in which such road is located, if the road to behighway, or of the county legislative authority of the county in which such road is located, if the road to be affected shall be a county road, or permanent highway, or of the council of any town in which the road isaffected shall be a county road, or permanent highway, or of the council of any town in which the road is located, if the road to be affected shall be a street or alley, within thirty days after entry of said order orlocated, if the road to be affected shall be a street or alley, within thirty days after entry of said order or decree of public use and the filing of the bond mentioned in RCW decree of public use and the filing of the bond mentioned in RCW 90.28.01090.28.010, to enter an appropriate, to enter an appropriate order or resolution directing the relocation and reestablishment and completion forthwith of such highway,order or resolution directing the relocation and reestablishment and completion forthwith of such highway, road, street or alley in place of that so to be overflowed or inundated, and promptly thereafter to acquireroad, street or alley in place of that so to be overflowed or inundated, and promptly thereafter to acquire all property and rights­of­way necessary therefor, instituting and diligently prosecuting suchall property and rights­of­way necessary therefor, instituting and diligently prosecuting such condemnation suits as may be necessary in order to secure such property and rights­of­way. Thecondemnation suits as may be necessary in order to secure such property and rights­of­way. The decision of the committee, board or council as to relocation and reestablishment set forth in such order ordecision of the committee, board or council as to relocation and reestablishment set forth in such order or resolution shall be final and conclusive as to all matters and things set forth therein, including theresolution shall be final and conclusive as to all matters and things set forth therein, including the question of public use and necessity in any and all condemnation suits to be brought under RCWquestion of public use and necessity in any and all condemnation suits to be brought under RCW 90.28.01090.28.010 and and 90.28.02090.28.020. After the reestablishment and relocation of any such highway, road, street or. After the reestablishment and relocation of any such highway, road, street or alley and the construction and opening thereof in its entirety to public travel and the signing of the grantalley and the construction and opening thereof in its entirety to public travel and the signing of the grant authorized in RCW authorized in RCW 90.28.01090.28.010, the state highway, county road or permanent highway, street or alley or, the state highway, county road or permanent highway, street or alley or such part thereof described in said grant shall be deemed to be abandoned and thereafter cease to be asuch part thereof described in said grant shall be deemed to be abandoned and thereafter cease to be a highway, road, street or alley.highway, road, street or alley. [ [ 1994 c 81 § 88;1994 c 81 § 88; 1927 c 202 § 2;1927 c 202 § 2; RRS § 7354­2.] RRS § 7354­2.] NOTES:NOTES: Eminent domain by corporations: Chapter Eminent domain by corporations: Chapter 8.208.20 RCW. RCW. Private ways of necessity: Chapter Private ways of necessity: Chapter 8.248.24 RCW. RCW. http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/House/2244.SL.pdf?cite=1994%20c%2081%20%C2%A7%2087; http://leg.wa.gov/CodeReviser/documents/sessionlaw/1984c7.pdf?cite=1984%20c%207%20%C2%A7%20385; http://leg.wa.gov/CodeReviser/documents/sessionlaw/1929c154.pdf?cite=1929%20c%20154%20%C2%A7%201; http://leg.wa.gov/CodeReviser/documents/sessionlaw/1927c202.pdf?cite=1927%20c%20202%20%C2%A7%201; http://app.leg.wa.gov/RCW/default.aspx?cite=8.20 http://app.leg.wa.gov/RCW/default.aspx?cite=8.24 http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/House/2244.SL.pdf?cite=1994%20c%2081%20%C2%A7%2088; http://leg.wa.gov/CodeReviser/documents/sessionlaw/1927c202.pdf?cite=1927%20c%20202%20%C2%A7%202; http://app.leg.wa.gov/RCW/default.aspx?cite=8.20 http://app.leg.wa.gov/RCW/default.aspx?cite=8.24 90.28.04090.28.040 Limitation on number of irrigation ditches across land.Limitation on number of irrigation ditches across land. No tract or parcel of improved or occupied land in this state shall, without the written consent ofNo tract or parcel of improved or occupied land in this state shall, without the written consent of the owner thereof, be subjected to the burden of two or more irrigating ditches constructed for thethe owner thereof, be subjected to the burden of two or more irrigating ditches constructed for the purpose of conveying water through said property to lands adjoining or beyond the same, when the samepurpose of conveying water through said property to lands adjoining or beyond the same, when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary to beobject can feasibly and practicably be attained by uniting and conveying all the water necessary to be conveyed through such property in one ditch.conveyed through such property in one ditch. [ [ 1890 p 717 § 39;1890 p 717 § 39; RRS § 7401.] RRS § 7401.] 90.28.16090.28.160 Fencing across streams.Fencing across streams. Owners of land or their agents shall have the right to fence across all unmeandered streams atOwners of land or their agents shall have the right to fence across all unmeandered streams at any time when such streams are not used for a public highway, or by making a fence that will not be anany time when such streams are not used for a public highway, or by making a fence that will not be an obstruction.obstruction. [ [ 1891 c 120 § 3;1891 c 120 § 3; no RRS.] no RRS.] 90.28.17090.28.170 Dams across streams.Dams across streams. There is hereby granted to persons, firms and corporations organized among other things, forThere is hereby granted to persons, firms and corporations organized among other things, for irrigation and power purposes, the right to construct and maintain dams and works incident thereto over,irrigation and power purposes, the right to construct and maintain dams and works incident thereto over, upon and across the beds of the rivers of the state of Washington in connection with such power andupon and across the beds of the rivers of the state of Washington in connection with such power and irrigation purposes, and there is hereby granted to such persons, firms and corporations an easementirrigation purposes, and there is hereby granted to such persons, firms and corporations an easement over, upon and across the beds of such rivers for such purposes. Such easement shall be limitedover, upon and across the beds of such rivers for such purposes. Such easement shall be limited however, to so much of the beds of such rivers as may be reasonably convenient and necessary for suchhowever, to so much of the beds of such rivers as may be reasonably convenient and necessary for such uses. All such dams and works shall be completed within five years after the commencement ofuses. All such dams and works shall be completed within five years after the commencement of construction work upon the same. The rights and privileges granted by this section shall inure to theconstruction work upon the same. The rights and privileges granted by this section shall inure to the benefit of such persons, firms or corporations from the date of the commencement of construction workbenefit of such persons, firms or corporations from the date of the commencement of construction work upon such dams and works incident thereto, and such construction work shall be diligently prosecuted toupon such dams and works incident thereto, and such construction work shall be diligently prosecuted to completion, and the rights, privileges and easements granted by this section shall continue so long ascompletion, and the rights, privileges and easements granted by this section shall continue so long as the same shall be utilized by the grantees for the purposes herein specified, and the failure to maintainthe same shall be utilized by the grantees for the purposes herein specified, and the failure to maintain and use such dams and works after the same shall have been constructed, for a continuous period ofand use such dams and works after the same shall have been constructed, for a continuous period of two years, shall operate as a forfeiture of all the rights hereby granted and the same shall revert to thetwo years, shall operate as a forfeiture of all the rights hereby granted and the same shall revert to the state of Washington: PROVIDED, That nothing in this section shall be construed in such a way as tostate of Washington: PROVIDED, That nothing in this section shall be construed in such a way as to interfere with the use of said rivers for navigation purposes, and all of such rights, privileges andinterfere with the use of said rivers for navigation purposes, and all of such rights, privileges and easements granted hereby shall be subject to the paramount control of such rivers for navigationeasements granted hereby shall be subject to the paramount control of such rivers for navigation purposes by the United States: AND, PROVIDED FURTHER, That the use and enjoyment of the grantspurposes by the United States: AND, PROVIDED FURTHER, That the use and enjoyment of the grants and privileges of this section shall not interfere with the lawful and rightful diversion of the waters of saidand privileges of this section shall not interfere with the lawful and rightful diversion of the waters of said rivers by other parties under water appropriations in existence at the time any such persons, firms orrivers by other parties under water appropriations in existence at the time any such persons, firms or corporations shall avail themselves of the benefits and privileges of this section, but no such persons,corporations shall avail themselves of the benefits and privileges of this section, but no such persons, firms or corporations shall have any right to construct any such dams or works over, upon or across thefirms or corporations shall have any right to construct any such dams or works over, upon or across the http://leg.wa.gov/CodeReviser/documents/sessionlaw/1890c717.pdf?cite=1890%20p%20717%20%C2%A7%2039; http://leg.wa.gov/CodeReviser/documents/sessionlaw/1891c120.pdf?cite=1891%20c%20120%20%C2%A7%203; land between ordinary high water and extreme low water of any river of this state without first havingland between ordinary high water and extreme low water of any river of this state without first having acquired the right to do so from the owner or owners of the lands adjoining the land between ordinaryacquired the right to do so from the owner or owners of the lands adjoining the land between ordinary high water and extreme low water over or across which said dam or works are constructed.high water and extreme low water over or across which said dam or works are constructed. [ [ 1911 c 95 § 1;1911 c 95 § 1; RRS § 7416.] RRS § 7416.] NOTES:NOTES: Reviser's note:Reviser's note: For later enactment, see chapter For later enactment, see chapter 90.0390.03 RCW. RCW. Height of dams on tributaries of Columbia river: Chapter Height of dams on tributaries of Columbia river: Chapter 77.5577.55 RCW. RCW. http://leg.wa.gov/CodeReviser/documents/sessionlaw/1911c95.pdf?cite=1911%20c%2095%20%C2%A7%201; http://app.leg.wa.gov/RCW/default.aspx?cite=90.03 http://app.leg.wa.gov/RCW/default.aspx?cite=77.55