Request By:
Mr. Tommy Yarbro
County Road Foreman
Fulton County
P.O. Box 310
Hickman, Kentucky 42050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Questions concerning county roads are contained in your letter to us, in which letter you request our opinion.
Question No. 1:
"When a fiscal court accepts a new road into the county system, does this require the property owners to give an easement or a deed to the property?"
In
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979), the court pointed out that a county is statutorily empowered to lay out and establish a county road before acquiring the necessary right-of-way from the owners of the property. Under KRS 178.010, "county roads" are public roads which have been accepted by the fiscal court of the county as a part of the county road system. Since 1914, a formal order of the fiscal court has been necessary to establish a "county road" . See also
Thompson v. Fayette County, Ky.App., 302 S.W.2d 550 (1957).
Once the fiscal court decides to establish a road as a county road, it should then take steps to acquire the necessary right-of-way. See KRS 178.110, 178.120, and 416.540 to 416.670. See especially KRS 416.660 (standards for determining compensation) and
East Kentucky Rural Elec. Coop. Corp. v. Bowles, Ky., 469 S.W.2d 763 (1971).
Question No. 2:
"Can the county commence work on these newly accepted roads before the deed or easement is secured?"
The fiscal court can "establish" a road or strip of land as a part of the county road system prior to obtaining easements or title from the owners. However, the fiscal court cannot start road work on the land in question until the owner has received or been tendered compensation, it being insufficient that a judgment has been rendered allowing the owner compensation. This is based upon § 13 of the Kentucky Constitution which provides in part that no man's property shall be taken or applied to public use without the consent of his representatives and without just compensation being previously made to him. Section 242 of the Kentucky Constitution also provides that just compensation for property taken by a municipality and other corporations shall be paid before such taking. See
Bushart v. Fulton County, 183 Ky. 471, 209 S.W. 499 (1919) 500, 501. The court wrote this in
Bushart v. Fulton County at page 530:
"All provisions of the Constitution on that subject are mandatory, and no statute will be upheld which can be so construed as to impair their salutary meaning or effect. The obvious meaning of sections 13 and 242, Constitution, is not only that persons whose property is taken for public use (and it can be taken for no other) shall receive just compensation therefor, but that this compensation must be received by them or tendered them before the property is taken. This rule, as declared in the several cases we have cited, can no more be disregarded by the judgment of a court than by the act of a corporation or an individual."
See also the later case of
Kentucky State Park Commission v. Wilder, 260 Ky. 190, 84 S.W.2d 38 (1935), which reiter ates the doctrine exposed in Bushart v. Fulton County, above.
The answer to question no. 2 is that the fiscal court must either pay the owners for the land to be used for the county road or must tender the compensation prior to the county's going on the land and beginning the road work.
Question No. 3:
"KRS 178.070 permits the county to lease or purchase equipment without taking bids. Is this still effective through KRS 179.070?"
Road construction contracts require bidding procedure. See KRS 178.050 and 178.140. However, you are referring to the purchase or lease of road equipment.
Assuming that the fiscal court has not adopted certain provisions of the Model Procurement Code, i.e., KRS 45A.345 to 45A.460, then KRS 424.260 would apply. Where the expenditure would involve more than seven thousand five hundred dollars ($7,500), newspaper advertisement for bids must be made.
In the event that the Model Procurement Code was adopted by the fiscal court, then competitive sealed bids, generally, would be applicable. See KRS 45A.343. Small purchases procedure may be used where the contract amount does not exceed five thousand dollars ($5,000). KRS 45A.385. See KRS 45a.345 to 45A.460 for applicable statutory law.