Request By:
Mr. Charles L. Lively
Grayson County Judge Executive
100 Court Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In June 1982, as you have written us, the Fiscal Court of Grayson County duly closed a certain public road in that county. The order of fiscal court closing the road was not appealed.
Now because the owners of adjacent property, to whom the road bed reverted, have barricaded the old road bed, certain persons in the neighborhood have inquired as to whether the fiscal court could reopen the road or reconsider the action it took over a year ago. The abutting landowners oppose any reconsideration.
You request our opinion as to what action the fiscal court may take, if any.
We assume that the statutory law relating to closing or discontinuing a county road was followed. See KRS 178.050, 178.070, and 178.115
Assuming the road was discontinued formally by the fiscal court under KRS 178.070, then KRS 178.116(4) reads:
"(4) If a county road has been discontinued under the provisions of KRS 178.070, then by a joint petition of all private parties entitled to necessary access the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties involved, or by a joint petition of all parties entitled to necessary access the road shall revert to the owner or owners of the tract or tracts of land to which it originally belonged. "
When considering KRS 178.050, 178.070, and 178.115, in pari materia, and even though the appeal time has expired (appeal to circuit court), under KRS 178.116(4), by a joint petition of all private parties entitled to necessary access, the road can be considered closed to public use but remain open in accordance with its condition and use for the access of the private parties involved; or by such joint petition of all private parties entitled to necessary access, the road shall revert to the owner or owners of the land to which it originally belonged. Such private parties entitled to necessary access to such road have those alternatives.
You indicate that the appeal time to circuit court has expired. See KRS 178.115, and
Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960). However, KRS 178.116(4) can be resorted to by the joint petition of all private parties entitled to necessary access, as mentioned above.
In addition to the alternatives of joint petition filed with fiscal court under KRS 178.116, the fiscal court has the technical authority to reopen the road pursuant to KRS 178.050, 178.080, and 178.115. However, assuming that the fiscal court closed the road under the belief that it was in the best interest of the county, the courts might hold that the fiscal court's power to reopen it so soon after closing could only be asserted by showing clear and convincing evidence that the closing was not in the best interest of the county and that such closing was a mistake.
Unless action is taken under KRS 178.116(4) by joint petition wherein the road is closed to the public but remains open to the private parties needing access, the old road bed would revert to the owner or owners of the land out of which the road was built. In such latter case, a re-opening of the road would require the fiscal court to start all over again by condemnation etc.