Request By:
Hon. John R. Fendley
Oldham County Attorney
206 West Jefferson Street
LaGrange, Kentucky 40031
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
You asked, in substance, (1) whether the anti-posting statute (KRS 512.080) can be enforced upon a public right-of-way that has been established by easement, and (2) what issues are presented in enforcing KRS 512.080, where there are no identifiable boundaries in light of KRS 178.025.
In our view, KRS 512.080, in accordance with its terms, may be enforced, in part, upon "public property. " If a public right-of-way established by easement is shown to be "public property, " KRS 512.080, as related to posting of matter on public property, may be enforced upon such right-of-way. The absence of identifiable boundaries defining public property will not, alone, defeat a prosecution for posting matter on public property in violation of KRS 512.080. Discussion follows.
KRS 512.080 provides:
(1) A person is guilty of unlawfully posting advertisements when, having no right to do so or any reasonable ground to believe he has such right, he posts, paints, or otherwise affixes to the property of another person, or to public property any advertisement, poster, notice or other matter.
(2) Unlawfully posting advertisements is a violation.
Whether KRS 512.080 may be enforced upon a "public right-of-way established by easement" depends upon whether the prosecution can establish that the right-of-way involved is "public property. "
If a public right-of-way, though established by easement, has become "public property, " that portion of KRS 512.080 banning posting upon "public property, " will apply to such right-of-way.
The mere fact that a "public right-of-way" has been established by easement will not render the right-of-way "public property" within the meaning of KRS 512.080. For example, a public right-of-way for a pipeline, or power lines, that has been established by a easement granted by a property owner to permit the utility to pass through his or her property, in all likelihood would not be said to render the right-of-way public property within the meaning of KRS 512.080. On the other hand, a road established by easement, and used without restriction by the general public for a period of five consecutive years, is presumed to be a public road in accordance with KRS 178.025. In such circumstance, the road and associated right of way, we believe, would be considered "public property" within the meaning of KRS 512.080.
In enforcing KRS 512.080 regarding public property, the prosecutor would have to affirmatively prove, as an element of the offense, that property where matter was allegedly unlawfully posted was "public property, " i.e., in the public domain.
Where no boundaries are readily identifiable (shoulders, ditch lines, fences, etc., as described in KRS 178.025) to indicate "public property, " KRS 512.080 may still be enforced. The burden rests with the prosecution, however, to affirmatively prove, as an element of the offense, that property on which signs, etc., were posted, is "public property" within the meaning of KRS 512.080.
An accused might defend a charge by asserting that there was no indication that a given location was public property, in view of the absence of identifiable boundaries. This assertion might be forestalled by affirmative proof during the prosecution's case of factors that would have placed one on notice that the area in which they placed a sign was public property. Such proof might tangentially relate to showing that an accused did not have "reasonable ground" to believe he or she had a right to post in a given area. Proving proximity to a recognized public road, even absent "ditch line," might be enough to establish that certain property is public property.
Ultimately, the question may rest either with a judge or jury.