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A. Section 32, Chapter 19, Laws 1889-90, is known as the “nonuser” statute and reads as follows: “Any county road, or part thereof, which remains unopen for public use for a period of five years after the order is made or authority granted for opening it, shall be thereby vacated, and the authority for building it barred by lapse of time.”

B. The nonuser statute was amended in 1909 by adding a significant proviso, which is set forth in the current, codified version of the statute, which reads as follows:

RCW 36.87.090
Vacation of road unopened for five years -- Exceptions.

Any county road, or part thereof, which remains unopen for public use for a period of five years after the order is made or authority granted for opening it, shall be thereby vacated, and the authority for building it barred by lapse of time: PROVIDED, That this section shall not apply to any highway, road, street, alley, or other public place dedicated as such in any plat, whether the land included in such plat is within or without the limits of an incorporated city or town, or to any land conveyed by deed to the state or to any county, city or town for highways, roads, streets, alleys, or other public places.

C. The proviso in RCW 36.87.090 exempts streets dedicated in a plat from the nonuser statute. In applying this proviso, the statute cannot have a retroactive effect, if it would interfere with vested rights. Thus, where a county road was dedicated and unopened for five years prior to the 1909 proviso and was not annexed into a city during said five year period, the right of abutting property owners to the vacated road vested and is unaffected by the proviso. On the other hand, where the five-year period had not run by the time of the 1909 proviso, the abutting property owner did not have a vested right and the proviso “saved” the unopened road from automatic vacation.

D. Although the nonuser statute applies without regard to the City’s street vacation process under Ch. 35.79 RCW, property owners who abut a street vacated under the nonuser statute may nonetheless apply to the City to “formally” vacate the street by ordinance. Abutting property owners may use this method to clear title to right-of-way vacated under the nonuser statute rather than filing a quiet title action in Superior Court, which can be more costly and cumbersome than the street vacation ordinance process. Accordingly, the City will consider petitions to formally vacate streets or alleys that have been vacated by operation of the nonuser statute, if said streets or alleys were dedicated and unopened as county roads for five years prior to the 1909 proviso and if the City has not acquired said streets or alleys by prescription /adverse possession, purchase, eminent domain, or other means. The burden shall be on the property owner requesting vacation to provide all necessary title and historical information to the City to demonstrate that the nonuser statute operates to vacate the subject property. (Ord. 2123, 2007)

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