Request By:
Mr. Larry E. Noe
Attorney at Law
321 East Broadway
P.O. Box 15
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The basic facts and question, on which you request our opinion, were stated by you as follows:
"There has been a situation that has arisen in Taylor County in which we feel interpretation of the statutes would be beneficial in order to determine the status of a particular roadway. This particular roadway in question has been in use by the traveling public for a number of years and has been maintained by the county government since approximately 1969.
"There has never been a complete procedure establishing this particular roadway as a county road under KRS 178.115. The problem is that there is only a 20 foot right-of-way available for the establishment of a county road, therefore, there is difficulty of complying with KRS 178.040(2).
"My question is, can this road be considered a county road under KRS 178.025 or since material, labor and supplies have been placed on this existing roadway can it be considered a county road?
"The next meeting of the Taylor County Fiscal Court is scheduled for March 1, 1983. If I could receive a response to this prior to that date it would be greatly appreciated."
We assume from your letter that the road in question has never been formally accepted by the fiscal court as a part of the county road system. See KRS 178.010(1)(b), 178.080, and 178.115. You say that only a twenty (20) foot right-of-way is available for the establishment of the road in question as a county road.
KRS 178.040, as to width of a county road, reads:
"(1) In order to change the width of a county road, the fiscal court shall make a special order for a different width. The order shall be recorded in the office of the county clerk. In order to change the width of the right-of-way of a portion of a county through road system the fiscal court of a county containing a city of the first class may make a special order for a different width. The order shall be recorded in the office of the county road engineer.
"(2) All county roads hereafter established shall occupy a right-of-way not less than thirty (30) feet wide, but the fiscal court may order it to be a greater width. All roads added to the county through road system in a county containing a city of the first class in accordance with KRS 178.333 shall occupy a right-of-way width as ordered by the fiscal court.
"(3) In acquiring a right-of-way for a county through road within any city, the fiscal court or the county court of a county containing a city of the first class may exercise any powers granted them by statute for the acquisition of property."
The court, in
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979), pointed out that prior to 1914 it was recognized that an acceptance by the county of a road as a county road could be accomplished informally, e.g., by maintenance of the road at county expense. However, since the enactment of Chapter 80, Acts of 1914, a formal order of fiscal court has been necessary to establish a county road.
It is our opinion that the acquiring of a minimal right-of-way of thirty (30) feet is mandatory if it is to become a county road in the legal, technical sense. The statute subsection reads "shall occupy a right-of-way not less than thirty (30) feet wide . . ." (Emphasis added). The word "shall" usually means that it is mandatory. KRS 446.010(29). The minimal width relates to the overall right-of-way, not the width of any pavement.
The road in question could be presumed to be a "public road", provided it meets the tests laid out in KRS 178.025. However, unless the fiscal court formally accepts the road as a "county road" , it does not become a "county road. " In addition, as we said, if it is to become formally a "county road" , the minimal width of KRS 178.040(2) must be complied with.