Request By:
Mr. Kermitt Keen
Leslie County Judge Executive
Courthouse
Hyden, Kentucky 41749
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question of whether the fiscal court can legally provide for the construction and maintenance of swinging bridges. You point out that the swinging bridge in the mountains is a way of life. They are walking, not vehicular, bridges which, as you put it, are necessary as a public service for school children, families and others of the public for access to bus stops and roads.
"County roads" are defined in KRS 178.010(1)(b) as follows:
"(1) As used in this chapter, unless the context otherwise requires:
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"(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;"
Subsection (1)(b) of KRS 178.010 envisions a formal acceptance, by the fiscal court by an appropriate order, of a road as a part of the county road system.
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). Also see
Illinois Cent. R.R. v. Hopkins County, Ky., 369 S.W.2d 116 (1963). By definition "county roads" includes necessary bridges.
Denton v. Pulaski County, 170 Ky. 33, 185 S.W. 481 (1916). Unfortunately this definition necessarily excludes swinging bridges, i.e., bridges in isolation and which are not an integral part of a county road. Thus, by definition of a county road, a legal county bridge is a bridge which is a necessary and integral part of a county road. No statutory provisions for an isolated walk bridge exist, to our knowledge. See
Leslie County v. Wooton, 115 Ky. 850, 75 S.W. 208 (1903); and
City of Flemingsburg v. Fleming County, 127 Ky. 120, 105 S.W. 133 (1907). Thus "public bridges have been defined to be such as form a part of the highway . . .", whether for foot or vehicular traffic. 11 C.J.S., Bridges, § 3, p. 985. See
Louisville & N.R. Co. v. Muncey, 229 Ky. 538, 17 S.W.2d 422 (1929); and
State Highway Commission v. County Board of Education, 264 Ky. 95, 94 S.W.2d 302 (1936) 307.
We fail to find any statute authorizing the expenditure of county money for that purpose. KRS 68.100 and § 180, Kentucky Constitution, would prohibit the expenditure of county road money on such swinging bridges.
You raise various questions concerning vehicle bridges:
"There are several questions concerning the construction of vehicle bridges by the use of county funds and personnel. What right of way deeds are required? Is there a minimum number of homes, people, and so forth, that must reside on the property to which a bridge may be built? Can a bridge be built from a county road across a stream to private property where one house is located if the property owner requests the bridge? Can a bridge be built under the same circumstances if two houses are located on the property? Does the number of houses have any bearing on the legality of building a bridge? Must there be a county road on both sides of the stream? "
We assume you refer to bridges necessary as a part of the county road system, as mentioned above. KRS 178.010(1)(b).
Where the county has not acquired the necessary right of way for a bridge, the fiscal court must do so. See KRS 178.040(2), for minimum width of road right of way. See KRS 178.110 (condemnation of right of way for road and bridges) , KRS 178.115 (power of fiscal court to open a road or bridge) , and KRS 179.070 (power and duties of county engineer).
As is true in establishing a county road, the construction of a bridge as a part of the county road system requires no specific number of affected homes, people, etc. In such cases, the fiscal court must exercise its sound judgment, after exploring the significant facts, in determining whether the proposed road or bridge is in the interest of the traveling public and the county taxpayers. KRS 178.115 uses the language " whenever the fiscal court of any county deems it to be in the best interest of the county . . ." (Emphasis added).
The case of
Walker v. Lyon County Fiscal Court, Ky., 425 S.W.2d 730 (1968), emphasizes, in the context of county road construction or improvement, the showing of convenience to the public, i.e., public necessity. The court wrote this about standards in determining the propriety of a fiscal court's construction of a road (or bridge) at page 731:
"The standard by which a road may be established or discontinued is better stated in the words of
Robertson, J., in Cole v. Shannon, 24 Ky. (1 J.J. Marsh.) 218 as follows:
'The public convenience must be consulted. And the common will, represented by the county court, must prevail over individual advantages and wishes. The advantages which any one derives from a highway, are adventitious. The duration of their enjoyment depends on the continuance or discontinuance of the road, and this depends not on the will or interest of an individual, but on the common good, and public sentiment.'
"To the same effect is
Hawkins v. Robinson, 28 Ky. (5 J.J. Marsh.) 8, 9. See also
Perkins v. Madison, 144 Ky. 718, 139 S.W. 967;
Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Ex parte Commonwealth, Ky., 291 S.W.2d 814;
Department of Highways v. Jackson, Ky., 302 S.W.2d 373."
The courts are inclined to hold in effect that the establishment of a road or bridge is primarily left to the fiscal court, whose decision is subject to court review for alleged abuse of discretion. See § 2,
Ky. Const., and Jefferson County v. King, Ky., 479 S.W.2d 880 (1972).
As to public convenience and necessity, this is written in 39 Am.Jur.2d, Highways, Streets and Bridges, § 66, p.p. 453-454:
"Improvements in a highway or street must be required by public convenience and necessity, and cannot be made solely for the benefit of a private individual or corporation. The existence of such public necessity and the character and extent of the work to be done are matters resting in the discretion of the public authorities who are invested with jurisdiction in the premises; and the courts will not interfere with the exercise of such discretion except where the power is exceeded or arbitrarily exercised, where fraud is charged and shown to exist, or where there has been a manifest invasion of private rights or a palpable disregard of the public interest. So, a court of equity will not interfere by injunction, under such circumstances, on grounds affecting simply the propriety, wisdom, or expediency of making the contemplated improvement, but only on some ground sufficient to show a want of jurisdiction over the subject matter of the particular improvement proposed or over the parties to be affected, or where there has been a clear invasion of private rights and irreparable injury will result. In enacting ordinances relative to such matters, the governing body of a municipality acts in a legislative capacity, and the courts cannot inquire into the motives of its members for the purpose of determining the validity of such ordinances. "
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 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 ask whether there must be a county road on both sides of the stream and bridge.
We believe that there must validly exist a county right-of-way on both sides of the bridge (constructed over the stream) . We can envision no public interest where the bridge dead-ends on one piece of private property.
KRS 178.010(1)(b) says in effect that a county right-of-way must be on both sides of a bridge, since the statute says county roads include necessary bridges. This means a bridge must be a segment, not the end, of a county road. See the above six factors which a fiscal court may consider in determining whether to establish a county road or bridge.