Request By:
Hon. Sam W. Moore II
Green County Attorney
P.O. Box 146
131 North Public Square
Greensburg, Kentucky 42743
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you state that there is, in Green County, a road which runs 1.5 miles from a state highway to a dead end and serves four property owners. The county has maintained it for at least 50 years. Recently, you learned that it has never been formally accepted by the fiscal court. You ask whether the county may continue to maintain the road without officially accepting it into the county road system.
KRS 178.010(1)(b) defines a county road as a public road which has been accepted by the fiscal court of the county as a part of the county road system. In
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979), the court held that a road may be a public road but not a county road, if the county has not accepted it.
"The obvious reason for this particular distinction is, of course, a public policy against holding counties responsible for the upkeep of any and all highways and biways that chance to become 'public' through processes of dedication or prescription over which the counties have no choice or control."
Id. at 41.
Thus, as we said in OAG 82-136, "as a basic rule, where the fiscal court has not by formal action accepted a particular road segment into the county road system, it has no authority to spend county money on it or to maintain or improve it in any way."
The only exceptions to the basic rule relate to sidewalks and bus turn-arounds for school children.
You have pointed out that OAG 80-489 appears to recognize another exception. That opinion allowed the county to continue to maintain a road which was not a county road if the public has acquired the free use of the road by prescriptive easement and the traveling public requests the fiscal court to maintain the road.
Upon further consideration, we do not believe that this is a valid exception to the general rule. The Opinion recognized the different categories, that is, county roads and public roads. While a county road is a public road, the reverse is not necessarily true. A public road will not become a county road until the fiscal court has taken affirmative action. As the quote above from
Sarver v. County of Allen, supra, points out, there is a valid public policy behind this procedure. A county should not be held responsible for maintenance of a road which happens to become public through a process over which it has no control.
Furthermore, the statute is very specific as to how a road becomes a county road. If the county could maintain all public roads, then it would be unnecessary to designate roads as county roads. A partial interest of the statute appears to restrict a county from maintaining a road until it has made the determination that such maintenance is in the best interests of the county. It does this by designating a road as a county road. It is a rule of statutory construction that the will or intent of the legislature must guide the interpretation of a statute
Wesley v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28 (1966).
OAG 80-489 based its holding on the theory that the fiscal court was merely using the users' prescriptive rights as a vehicle for maintaining the road. While the fiscal court does represent the citizens of the county, it does so as a duly constituted body created by the state constitution and statutes. As such, the fiscal court has only those powers specifically delegated to it by statute.
Fiscal Court of Jefferson County v. City of Louisville, Ky., 559 S.W.2d 478 (1977). Thus, its representation of the county's citizens must be through its statutory powers.
In this situation, the fiscal court may act in what it perceives to be the best interests of the county by designating a road as a county road. It may then maintain the road. Otherwise, we do not believe it is sound public policy to allow the fiscal court to maintain a road which is not a county road.
To the extent OAG 80-489 is inconsistent with this Opinion, it is hereby modified.
Your final question is whether a complaint under KRS 259.210 will lie against the owner of cattle which are roaming over the road if the road is not a county road. You state that the owner of the cattle claims fee simple ownership of the road and that the cattle are contained on the landowner's premises, including the road, by means of cattle guards.
KRS 259.210(1) states: "No person shall permit any cattle owned by him or under his control or in his custody, to run at large." Whether this statute has been violated or not depends, we believe, on the status of the road. If it is in fact the private property of the cattle's owner, it would appear that there is no violation. On the other hand, if the road has attained the status of a public road (see