Request By:
Mr. Roger Wm. Perry
Marshall County Attorney
Courthouse
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
There were instances in the past where roads in your county may have been maintained by the county without any formal action of the fiscal court; and now the fiscal court would like to cease maintaining such roads.
"County roads" are defined by KRS 178.010(1)(b) as follows:
"(b) 'County roads' are public roads which have been accepted by the fiscal court of the county as a part of the county road system or private roads, streets, or highways which have been acquired by the county pursuant to KRS 178.405 to 178.425. 'County roads' includes necessary bridges, culverts, sluices, drains, ditches, waterways, embankments or retaining walls;"
At this point it can be seen that a "county road" is a road that has been accepted by the fiscal court as a part of the county road system. The question now is: What constitutes an acceptance by fiscal court?
The court, in Sarver v. County of Allen, Etc., Ky., 582 S.W.2d 40 (1979), pointed out that "Prior to 1914 it was recognized that an 'acceptance' by the county could be accomplished informally, e.g., by maintenance of the road at county expense." However, since the enactment of Ch. 80, Acts of 1914, a formal order of fiscal court has been necessary to establish a county road.
The answer to the first question is that the fiscal court has a duty to maintain a county road. A county road is a public road which has been accepted by the fiscal court as a part of the county road system by a formal order of the fiscal court. See also Illinois Central Railroad Co. v. Hopkins County, Ky., 369 S.W.2d 116 (1963) 117. The mere maintenance of a road, without any formal fiscal court orders, would not make it a county road. Therefore, the fiscal court has the authority to cease the maintaining of a road, without any formal action, concerning which road no formal orders of fiscal court were entered of record. As the court said in Sarver v. County of Allen, above, a road may be "public", but it is not a county road until the fiscal court takes the formal action mentioned above.
Next, you ask whethere a road, never taken into the county road system by a formal order of fiscal court, may be continued to be maintained by the county, as a matter of right, against the objections of adjacent landowners.
It would appear that if the public has acquired the free use of a roadway by user, considering that a public user ordinarily ripens into a prescriptive easement in 15 years, the fiscal court could continue to maintain the road if the traveling public requests the fiscal court to do so, or even if it appears that the roadway is used by the traveling public in a substantial way, even against the objections of the adjacent landowners. In such situation the fiscal court would be merely permissively using the users' prescriptive rights as a vehicle for maintaining the public road. See Cummings v. Fleming County Sportsmen's Club, Inc., Ky., 477 S.W.2d 163 (1972); and Sarver v. County of Allen, above.