Request By:
Mr. Gary C. Johnson
Pike County Attorney
P.O. Box 231
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You say there is a problem in Pike County relating to the use of county road rights of way by utility companies. The fiscal court has directed you to prepare an ordinance regulating the use of the county's public ways by utility companies. You raise specific questions.
Question No. 1:
"Does the county have the authority to regulate by ordinance the use of public ways for the transmission of public utilities?"
The answer is "yes". KRS 67.080(2)(b) and 67.083 (3)(t) vest in the fiscal court the exclusive authority to enact ordinances providing for the proper construction, reconstruction, maintenance and operation of county roads [made a part of the county road system under KRS 178.010] and other property. Implicit in these statutes is the concept that the fiscal court can enact ordinances reasonably calculated to promote the proper and necessary supervision or regulation over such public ways.
By virtue of this supervisory control over such public ways, the fiscal court, under §§ 163 and 164 of the Kentucky Constitution, generally has the authority to grant franchises to various utilities desiring to place their facilities over or along such county public ways.
Tri-State Ferry Co. v. Birney, 235 Ky. 540, 31 S.W.2d 932 (1930). Where the franchise is permissible, the fiscal court may require a reasonable fee. The franchise has been characterized as "an agreement between the granting authority and the holder and partakes of the usual incidents of a contract." City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972) 287. However, under KRS 416.140 the state has reserved unto itself the right to grant certain named utilities [water, electricity, gas and gasoline] permission to use public roads, and has not delegated that right to any of its political subdivisions.
Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410, 189 S.W.2d 357 (1945). However, a gas utility must, in order to lay its lines along or under a county road right-of-way, obtain the consent of the abutting [fee simple] landowners. This is restricted to the situation in which the county has only an easement [limited to travel] , but not a fee.
Paine's Guardian v. Calor Oil & Gas Co., 133 Ky. 614, 103 S.W. 309 (1907).
In addition, a fiscal court cannot enfranchise Southern Bell Telephone and Telegraph Company, or its successors, since it already holds the perpetual franchise to all public ways in Kentucky from the state. See OAG 65-227, copy enclosed, and
Southern Bell Tel. & Tel. Co. v. Com., Ky., 266 S.W.2d 308 (1954). However, such rights are subject to the rule prohibiting obstruction and to the Commonwealth's and county's police powers.
Notwithstanding that fiscal courts cannot enfranchise water, electric, gas, and gasoline utilities, the right of the fiscal court to reasonably supervise and control such county public ways generally, and as affecting occupying utilities, remains.
In exercising this right of regulation of the county roads, it should be kept in mind that by statute [KRS 179.250 and 179.260] telephone, telegraph, electric railway or other electrical companies, and pipline companies are prohibited from obstructing public roads. Under KRS 278.540 any telephone or telegraph company laying its lines through any public lands and across or along any public road is prohibited from obstructing such public road travel. KRS 416.140(2) expressly prohibits water, electric, gas and gasoline utilities, whose lines and transmission facilities are located on, along, or over county roads, from obstructing or endangering the travel on and along such county roads. Further, the location of all transmission lines and other appliances shall be subject to reasonable direction and regulation of the authorities [here, fiscal court] having control of the highways, roads and waters through and over which the lines are constructed or proposed to be constructed.
In
Bastin Telephone Company v. Davidson, 176 Ky. 23, 195 S.W. 148 (1917), the court pointed out that telephone companies had the apparent statutory right to condemn public land for rights of way where such rights of way could not be obtained by contract. See KRS 278.540, 416.150, and 416.540 et seq. However, Bastin, above, suggests that under what is now KRS 278.540(1) any telephone or telegraph company desiring to place its lines along or across county roads must receive just compensation only by the fiscal court's issuing a franchise, pursuant to § 164 Constitution. The court added that a telephone company could, by mandamus, compel the fiscal court to issue a franchise where it arbitrarily refuses to do so. Telephone companies cannot condemn county roads, since the constitutional right of a county to grant a utility franchise cannot be modified or taken away by mere legislative action.
Oil and gas companies cannot condemn public property. See KRS 278.502 and 416.540(1). Counties are required to offer franchises to telephone companies, but not to oil and gas companies.
Question No. 2:
"Can a county ordinance require a permit to place a pole, wire, conduit, pipe, line or other fixtures on any public place of the county including street, road, alley, sidewalk, or right of way?"
Under KRS 416.140 and the holding in
Warfield Natural Gas Company v. Lawrence County, 300 Ky. 410, 189 S.W.2d 357 (1945), above, the fiscal court can require no franchise for the water, electric, gas or gasoline utilities which have their appliances, lines and transmission facilities on county right-of-way. As the court said, the state has granted the permission. However, as we pointed out above, the fiscal court has a right to enfranchise other utilities, including telephone and telegraph utilities, and issue permits. Also the following are proper subjects of county franchise: Ambulance service, cable television, garbage collection, and auto-bus lines operating over county roads.
Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967).
Question No. 3:
"Can a county ordinance require a public utility to move at its own expense such pole, wire, conduit, pipe, line or other fixtures which interferes with the proper use or maintenance of any public way or place?"
The answer is "yes", provided the facilities to be moved and relocated were not originally constructed on other than public right of way, in which latter case the county would have to bear the cost of moving and relocating. See KRS 179.265, 179.250, 179.260, and 179.280. Such statutes imposing the cost of moving and relocating on the utilities owning or using such facilities are upheld as constitutional enactments designed to promote the public safety of the traveling public, which has always been regarded as a proper subject of the police power.
Commonwealth v. Watson, 223 Ky. 427, 3 S.W.2d 1077 (1928) 1079. See also KRS 67.080 and 67.083, relating to the fiscal court's exclusive jurisdiction over county roads.
The applicable rule concerning the moving of structures and appliances of public service companies located on public streets is stated in 39 Am.Jur.2d, Highways, Streets, and Bridges, § 278, p.p. 666-667:
"Where a public service company has placed structures or appliances in the public streets with permission of the public authority, the public authority cannot arbitrarily order their removal or relocation. However, the grantee of a right to make special use of the public highways and streets, such as a public service company, may be required to abandon the use granted, or to remove or change the location of structures erected under the grant, when demanded by public necessity, convenience, and welfare, or when highway use makes this necessary, and may further be required to bear the expense of such removal or relocation. The franchise of a public service company is generally granted upon an implied condition that the structures laid by virtue of its authority shall not at any time interfere with any other public use to which the public authority may see fit to devote the way, and consequently the company maintaining such structures is not entitled to compensation when the disturbance or removal of the structures or an alteration of their location is made necessary by a change in the grade of the highway, or the introduction therein of structures of some other character, or the devotion of the way to some other public use."
However, the ordinance dealing with this aspect should expressly provide for due process hearings before action to enforce is taken.
In a franchise to a utility is the implied condition that the utility may be required to remove and relocate its facilities when such removal and relocation are in the interest of public convenience or safety.
Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308 (1954). See also 39 Am.Jur.2d, Highways, Streets, and Bridges, § 277, p. 665.
Question No. 4:
"Can a county ordinance require a public utility to relocate, at its own expense, such pole, wire, conduit, pipe, line or other fixtures in the event that the county decides to alter the use of the public way or place?"
We have answered this under Question No. 3.
Question No. 5:
"Can a county ordinance require a public utility company to restore at its own expense and in an approved manner any public way disturbed by the public utility company placing, using, or maintaining any pole, wire, conduit, pipe, line or other fixture? "
The answer is "yes". See KRS 179.260, 179.250, 179.270 and 179.280.
Jefferson County v. Pohlman, 243 Ky. 556, 49 S.W.2d 344 (1932) 346, states the rule that the true measure of damages for injury to real property is the difference between the fair market value of the property before and after the trespass complained of. As sometimes expressed, it is such a sum as will enable plaintiff to restore the property to substantially as good a condition as it was before the injury. Where the property can be restored to its original condition, the measure of damages may be the cost of restoration. 25 C.J.S., Damages, §§ 84 and 85.
Question No. 6:
"Can a county ordinance require a public utility company to protect, indemnify and hold harmless the county and any of its offices from any damage or liability arising from the location or relocation of any pole, conduit, pipe, line or other fixtures? "
This is doubtful as to the county, since such an agreement is academic in view of the sovereign immunity of the county.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967). As concerns the liability of the county officers involved in county road management, the general rule is that a public officer is liable for personal injuries resulting from his negligence, where the duty imposed upon him of keeping the streets or highways in repair is ministerial or mandatory in character, and not judicial or discretionary.
Shearer v. Hall, Ky., 399 S.W.2d 701 (1966). As concerns members of fiscal court, the rule is that public officers are responsible only for their own misfeasance and negligence and are not responsible for the negligence of those who are employed by them if they have employed persons of suitable skill.
Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) 414.
Notwithstanding the vulnerability of county officers whose duties encompass county road management, it is our opinion that there is no statutory basis for requiring the utilities to contract to hold county officials harmless from liability in connection with location or relocation of utility facilities.
Question No. 7:
"If a Fiscal Court member passes when asked to vote on a given issue and at the conclusion of the voting there is a tie vote would his 'Passes' be tallied as an affirmative vote on the order?"
The abstention would count for nothing. Where a majority of those present and voting vote a "yes" or "no", the person abstaining may be counted with the majority. Here there was a tie, not a majority vote. See KRS 67.040 and