Request By:
Mr. Reuben Watts
Letcher County Judge Executive
Courthouse
Whitesburg, Kentucky 41858
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of this office on questions relating to the county's road and bridge program.
Specifically, you ask whether it is legal for the fiscal court to construct a bridge or bridges linking a public highway to a private drive?
KRS 178.010(1)(b) defines "county roads" in part as public roads which have been accepted by the fiscal court of the county as a part of the county road system. "County roads" includes necessary bridges, culverts, sluices, drains, ditches, waterways, embankments or retaining walls.
A county bridge may only be constructed on county right of way and linking segments of a county road. KRS 178.010(1)(b). The bridge must be a part of a public road accepted by the fiscal court as a part of the county road system. A formal order of fiscal court is necessary to establish a county road.
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979).
The court held in
Fletcher's Heirs v. Fugate, 26 Ky. Rep. 631, 3 J.J. Marsh. 631 (1830), that a county road cannot be established for the convenience of one individual. The case laid down the principle that the public convenience must govern in establishing a county road. In fact, the General Assembly has voiced this principle in KRS 178.080 and 178.115 in requiring that the establishment of a county road be in the interests of the county or general public. In addition, § 171 of the Kentucky Constitution demands that tax money be spent only for a public purpose of the particular tax levying unit.
City of Lexington v. Hager, Ky., 337 S.W.2d 27 (1960).
The answer to the above question is that the fiscal court has no authority to construct a bridge or bridges linking a county to a private drive. The same principle applies to the repair of such bridges that are not a part of a "public road" , which public road is a part of the county road system. Likewise, the mere beginning of such "private bridges" in no way obligates the fiscal court to finish the projects, since to do so would be strictly illegal.
Your second question:
"Is it legal to construct a road, repair a road or build a bridge to a community or area of two or more homes?"
The establishing of such a county road is left under the statutes (see KRS 178.080 and 178.115) to the sound judgment of the fiscal court in their determining whether the road or bridge will serve the general public interest, and thus justify the expenditure of county tax money. The courts may reverse such decision for road establishment where it appears that the fiscal court acted arbitrarily in considering the general public interest. See § 2,
Kentucky Constitution, and Jefferson County v. King, Ky., 479 S.W.2d 880 (1972). Also see KRS 178.100, giving an aggrived party the right to bring an action in circuit court to contest the decision of the fiscal court.
McCowan v. Bond, Ky., 249 S.W.2d 536 (1952).
As relates to some guide lines in the fiscal court's determining whether to establish a particular road or bridge, the case of
Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960), is helpful. The case holds that first the specific requirements of KRS 178.115 must be observed. The ordinance for the establishment of a road must declare that the project is in the best interests of the county, if the fiscal court believes it is. The property involved in the improvement must be described sufficient to put any contesting party on notice thereof. The posting of certified copies of such ordinance is made mandatory by KRS 178.115. The posting of the ordinance on the road itself is required to be done by the county road engineer.
As to the fiscal court's determining whether the establishment of a county road or bridge will be in the county's or general public interest, the fiscal court may properly consider: (1) the number of people or families living in the immediate area; (2) the availability of proper funding under KRS Chapter 68; (3) the potential traffic count in the area; (4) the public convenience in terms of social and economic perspective; (5) the potential benefit of the project to the public in general; and (6) the question of whether the project is essentially public in nature. It must be seen that a particular road or bridge could involve the public good or interest, although the enjoyment and advantages derived from their maintenance is not distributed equally, even between members of the public who are situated alike or in the same class. The court said in
Carman v. Hickman County, 185 Ky. 630, 215 S.W. 408 (1914), 411, that "It will be sufficient if it should be of such a character as that it promotes the general welfare and prosperity of the people who are taxed to sustain it." (Emphasis added).
Finally, you request that we advise a rule concerning the repair of roads leading to cemeteries.
We have dealt with the latter question, as relates to using county road equipment on graveyards, cemetery roads, and church lots in OAG 82-101, copy enclosed. We concluded in that opinion that county road equipment may be used on the maintenance of public graveyards and cemetery roads where such use promotes the proper upkeep and maintenance of such public cemeteries and cemetery roadways. See that opinion for details. The point of emphasis in that context is "public cemetery" , i.e., one used by the general community, and not one used only by a family or a small portion of the community.