Request By:
Mr. James K. Larkin, Sr.
Jefferson County Sheriff
6th Floor, Fiscal Court Building
6th and Court Place
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that newspaper vending machines, perhaps owned by the Courier-Journal & Louisville Times, 1 have been "located on many city, county and state roads." One of your staff has indicated that these machines are found chained 2 to telephone poles located, on or near sidewalks, which are on city, county, and state roads rights of way. You ask whether their location is pursuant to proper governmental approval under applicable statutes.
We are not aware of any statute permitting this kind of commercial venture at such locations. Thus technically the owner or owners of such vending machines are simply trespassers on public rights of way.
KRS 177.106 provides for a state highway encroachment permit under certain conditions. This covers encroachments over any part of the right of way of a state highway. However, it seems to relate to encroachments which might interfere with the safe, convenient and continuous use and maintenance of the road. We conclude that the statute was not designed to cover the encroachment you mention. See definition of "encroachment" in KRS 177.103(2).
It is generally recognized that a city has no power without express legislative authority to authorize a particular private individual or corporation to erect a structure on or obstruct or otherwise make permanent use of any portion of a street or sidewalk for a special private purpose. This is based upon the premise that an individual or corporation has no inherent right to use a public way to conduct his private business; and upon the corollary premise that streets are for public use, and the regulative power of a city is exercisable in the interest of the general welfare only.
Terrell v. Tracy, 312 Ky. 631, 229 S.W.2d 433 (1950) 434, 435.
Here we understand that the vending machines have the name of the newspaper on them. As such, it constitutes a kind of advertising as well as making the newspapers available to anyone wishing to buy them. But such advertising and business are not in the public interest.
Cf.
Tar Heels Coals, Inc. v. Turner Elkhorn Mining Co., Ky., 448 S.W.2d 385 (1970), involving a coal tipple and appurtenant chute containing a conveyor belt. When the Department of Highways acquired the right of way in 1950, the tipple and conveyor belt had been in operation for about six years. The deed of the right of way contained an agreement that the tipple and belt could remain over the road to be constructed. The court held the deed provision to be tantamount to a "permit" as envisioned by KRS 177.106.
The court wrote in
Commonwealth, Department of Highways v. Trimble, Ky., 451 S.W.2d 641 (1969) 643, that "though a structure extending over a public way may not actually interfere with traffic or travel upon it, in which event it is not a nuisance, if it is placed there without public authority it is a purpresture. " A purpresture is an inclosure by a private party of a part of that which belongs to the public. Black's Law Dictionary, p. 1401.
Cf. KRS 416.140, dealing with permits issued to utilities for using highway rights of way.
In summary, we conclude as follows: (1) We know of no statutes or regulations, including the Bureau of Highways permits manual, which would authorize a permit for this kind of use of city, county, or state roads rights of way. (2) Thus the location of such machines, though they may not interfere with public travel on the rights of way, constitute a purpresture since they are there without public authority.
Footnotes
Footnotes
1 It is possible that such machines may be actually owned by Courier-Journal newspaper distributors. However, the ownership here is not important in the light of the principle involved.
2 This is a paradox: Prometheus bound, but unbound for 15 cents.