Request By:
Mr. W. C. Flannery
Rowan County Judge/Executive
Courthouse
Morehead, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You tell us that in the 120 counties of Kentucky, including your county, approximately 80% of the roads in these counties involve no formal deeds of easements or right-of-ways to the county. Yet your county and other counties continue to maintain such roads for public use.
The fiscal court of your county, in that connection, recently passed a resolution. We quote from the resolution:
"BE IT RESOLVED BY the Fiscal Court of Rowan County, a public entity established under the laws of the State of Kentucky, THAT all county roads that are now being maintained and previously maintained by the prior Fiscal Courts of this County and all school bus and mail routes throughout the entire County of Rowan will hereby continue to be maintained by the Rowan County Fiscal Court.
"WHEREAS, we believe there is a need for defining the County road system of Rowan County, Kentucky due to the fact that many roads have been changed from their previous location to their now existing location due to moving of said roads from old creek beds and new construction on higher grounds and the added growth of many subdivisions in our County."
You ask whether this resolution is legal.
"County roads" are public roads which have been accepted by the fiscal court of the county as a part of the county road system. See KRS 178.010(1)(b). Under the wording of the statute the formal acceptance of roads into the county road system is required in order to clearly establish the fiscal court's responsibility for controlling, maintaining, and improving such roads as county roads. The nature of the subject means that such responsibility simply cannot be left to doubt.
Illinois Central Railroad Co. v. Hopkins County, Ky., 369 S.W.2d 116 (1963) 117, 118.
Assuming that some of the roads in your county have never been the subject of formal deeds of conveyance of easement or fee simple title to the county or of fiscal court resolutions accepting specifically described roads as a part of the county road system, then an ordinance on this subject should follow the procedure outlined in KRS 178.115 by setting forth the necessity for such public roads, which roads should be sufficiently described such that their location and extent can be readily ascertained. See
Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960). Any person aggrieved thereby may prosecute an appeal from such ordinance of fiscal court by filing a petition in equity in the circuit court of the county setting forth his grievances. See KRS 178.115(2) for other details of notice and adversary procedure. See also KRS 100.277, 100.281 and 100.301 for compliance as to subdivision regulations and subdivisions.
See KRS 178.025, relating to presumptions of road establishment [dedication and use by the public for five years] and width of right of way in the absence of any record.
Thus KRS 178.010 [defining county roads] envisions a formal acceptance, on the part of fiscal court by an appropriate ordinance, of roads as a part of the county road system. See KRS 67.080(2)(b), 67.083(3)(t); and
Illinois Central Railroad Co. v. Hopkins County, Ky., 369 S.W.2d 116 (1963) 117, 118. Once it becomes a part of the county road system, the fiscal court has the duty to be diligent in keeping it in proper repair.
Shearer v. Hall, Ky., 399 S.W.2d 701 (1966).
In answer to your question, we are of the opinion that the subject resolution does not meet the requirements we have outlined above. The fiscal court can enact an ordinance repealing the present resolution, and observing the requirements outlined above.
KRS 67.075(1) defines a "county ordinance" as an official written act of fiscal court, the effect of which is general and lasting in nature. The effect of this general law is to amend by implication KRS 178.115, which latter provides the format of order or resolution. See Sands, Sutherland Statutory Construction, Vol. 1A, §§ 22.13 and 23.16. Since the format of "resolution or order" is irreconcilable with "ordinance" , it is our opinion that the matter of accepting roads as a part of the county road system is a matter of gneral and lasting nature, and the road matter should take the form of an ordinance [see KRS 67.076, 67.077, and 67.078, relating to "ordinance" requirements].
Commonwealth v. Hallahan, Ky., 391 S.W.2d 378 (1965) 379; and
Fiscal Court of Jefferson Co. v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 612.
By way of summary, the ordinance should make it clear that the fiscal court is formally accepting certain described [not by metes and bounds] roads as a part of the county road system. The ordinance should contain a description of all roads [just sufficient to identify for this purpose] intended to be a part of the county road system, whether formal deeds of easement or fee simple title are involved or not. The ordinance should, in attempting to establish such roads as county roads, adopt and refer to the procedure outlined in KRS 178.115.