Request By:
Mr. Kendall Robinson
Owsley County Attorney
Booneville, Kentucky 41314
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Certain individuals have requested the Owsley Fiscal Court to grant permission to place gas pipelines in county road rights of way. They said that a gas well had already been drilled on their property and they wanted to run gas lines (two inch) from the well for approximately four miles through county road right of way to the main gas line of Columbia Gas Company. Columbia is buying the gas from them but the parties concerned apparently want this private feeder line system into the Columbia main gas line. The people who own the gas well are operating strictly as private individuals.
The first question is whether such private line can be legally extended, but buried, along the county road right of way as above described.
Since this is purely a private matter and involves a proposed method to sell and deliver the gas belonging to individuals to Columbia Gas utility lines, we do not construe it as involving a utility. While §§ 163 and 164 of the Kentucky Constitution permit counties to grant franchises to utilities using county rights of way, there is no utility involved here. See Roy v. City of Owensboro, Ky., 415 S.W.2d 77 (1967) 79. There the court said that the purpose of those constitutional sections was to give the municipality control of the streets, alleys and public grounds and to make it possible for the city to provide the services of the utilities to its inhabitants. Thus the right to grant franchises applies to all utilities and services which might today be proper subjects for control, when the original intent and purpose of the act is considered. See City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972), involving cable television franchises.
When we speak of utilities, we are speaking of utilities which provide certain services to the public generally. A public utility is "A business or service which is engaged in regularly supplying the public with some commodity or service which is of public consequence and need, such as electricity, gas, water, transportation, or telephone or telegraph service." Black's Law Dictionary, page 1395.
Since no public utility is involved here, the fiscal court has no basis, under §§ 163 and 164 of the Kentucky Constitution, for issuing a franchise in this matter.
KRS 416.140 provides that the Department of Highways may grant permission for certain public utilities, including gas, to place their lines and appliances along state and county roads. Here again that is not applicable, since no public utility is involved.
CONCLUSION
It is our opinion that the fiscal court has no authority to permit these private individuals to place their gas pipelines along or under county road rights of way, since they are not a public utility. Public policy demands that these county road ways not be encumbered except in the manner permitted by the constitution and statutes. In view of these conclusions, it is not necessary to go into the question of liability in the event someone is injured while the pipeline is being constructed and afterwards.