It appears that counties are regularly taking private property without paying for it and then are preventing the property owners from pursuing a claim for damages. That’s what we discovered recently and what appears to be a widespread phenomenon.

Our small family farm is served by a county road and, like many rural landowners, we own the underlying property to the center line of it. This means that the county owns the roadway via a transportation easement, but we own the dirt underneath it.

In the past, the county has respected private property and whenever it excavated our side of the road, it has given us notice and then left the material on site. But recently, with staff turnover and the loss of institutional memory, the county’s attitude has changed.

With no notice, the county road crew recently did a thorough “cleaning” of the road ditch in front of our farm and this time, instead of leaving the material on site or asking permission to remove it, they simply hauled the soil away.

When we asked the county to explain its actions and reimburse us for the property it took, we ran into a brick wall.

First, staff erroneously claimed that the county owned all of the dirt under all of its road and therefore had “prescriptive rights” to the soil that was excavated. This surprised us because it was not only a mischaracterization of real property law, but was also a fundamental change in the county’s attitude toward private property.

Secondly, we made a records request, but were informed that the county does not document its road maintenance projects. It claimed to have no written procedures to guide the work and collects no data about how the work was performed. Therefore, we could not find out how much soil was excavated, where it was taken, and how it was disposed of.

Finally, we tried filing a formal complaint, but without any documentation to show how much soil was taken and what it was worth, we had no evidence to prove damages and so our claim was dismissed.

It seemed that the county had constructed a perfect Catch-22 to shield itself from liability and discourage property owners from filing damage claims. Then we started wondering how widespread these practices were.

We contacted the Washington Association of Counties and learned that Washington’s 39 counties maintain tens of thousands of miles of county roads and do so in similar fashion. We also learned that throughout the 19th and 20th centuries, the counties’ preferred way to open a road was with an easement rather than a dedication deed.

Therefore, many, and perhaps most, of the county roads in service today are “easement road” with many thousands of rural property owners owning the dirt underneath them.

Next, we did some estimating. If Washington’s 39 counties performed maintenance on a total of 2,000 miles of roadway per year (1,000 miles of paved surface with ditches on both side) and there is an average of a dozen or so property owners along one mile of county road, that would be a lot of private property interests involved.

Then we did a rough calculation of how much soil the county took from our 500 feet of frontage, conducted some research into what it would cost to replace it, and came up with an estimate of about $1,000. This would mean that, if you do the numbers, the annual losses to rural property owners on a statewide basis could be quite high.

This situation should raise multiple red flags for rural landowners, but there is one more reason counties have to start developing procedures and keeping records of its road work activities. That reason has to do with environmental damage and its consequences.

County road ditches have for years been pollution collectors for toxic material such as heavy metals, petroleum products, pesticides and herbicides, agricultural fertilizers, and fecal matter. Recently, however. a new toxic substance has been added to the list.

“Rubber dust” is created whenever rubber-tired vehicles are run on a hard surface, such as an asphalt road. Since the 1950s, rubber used to manufacture tires contains a substance called 6PPD-quinone which has recently been shown to be highly toxic to fish runs, especially salmon and steelhead trout.

This has set off alarm bells for state, local and tribal governments, and prompted environmental groups to propose litigation alleging that inadequate maintenance and management of roads is a big part of the problem.

During our discussions with the county, we persisted in asking how it disposed of excavated material and we eventually learned that the county either reused it for other public works projects or buried it in “pits” scattered around the area. We also learned that the county does not necessarily test the material and so does not know if it is spreading pollution when it reintroduces the excavated material back into the environment.

Once again, this demonstrates why the public needs counties to start collecting data and maintaining records and, at this point, why legislation is necessary to make this happen. Counties should be reminded that they have common interests with rural land owners and should work with them as partners when dealing with road-related issues.