Request By:
R. Neil Lewis, Esq.
31 East Fourth Street
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that the fourth class city which you represent is in the process of building a floodwall around the perimeter of the city. As part of the construction process it is going to be necessary for certain utilities to relocate utility lines which currently exist in the area of the floodwall. Specifically, some of the sanitation district and water district lines need to be relocated.
Your question asks who is responsible for payment of the costs involved in the relocation of the sanitation district and water district lines which presently lie within public right of ways, especially when federal funds are involved in the construction of the floodwall project. You also seek clarification of KRS 76.630 in regard to a situation where the sewer district is not the one determining that the facilities must be removed or relocated on a public way.
We initially direct your attention to KRS 94.360(1), dealing with the city's control over its public ways, which provides:
"The city legislative body in cities of the second, third, fourth, fifth and sixth classes shall, by itself or through a department of public works or a superintendent of public works as provided by law, have and exercise exclusive control over the public ways, landings, wharves, and public grounds of the city. It may establish, open, alter, widen, extend, close, grade, pave, repave, clean, sprinkle and repair the same, prevent and remove encroachments thereon or obstructions thereof, put drains and sewers in the same, regulate or prohibit the building of vaults and areas under the sidewalks, and enforce and regulate connection with sewers, gas and water mains and conduits of all kinds laid in or under the public ways of the city."
KRS Chapter 104 deals with "Flood Control and Water Usage" and KRS 104.030 authorizes cities of all classes to establish a flood control system for the purpose of protecting property from floods or high water. KRS 104.200 to 104.380 deal with "Flood Control Systems for Fourth Class Cities" and KRS 104.210 authorizes fourth class cities to establish a flood control system for the protection of property from floods or high waters. See OAG 61-927, copy enclosed.
In the factual situation you have presented we would emphasize the point that the utility lines in question apparently lie within the public right of ways of the city. The city has exclusive control of the public ways in the city and, while the project involved here does not specifically relate to the city streets, the city does have the authority to establish a flood control system for the purpose of protecting property from flooding which, of course, includes in part the city streets.
In the case of
Louisville Gas & Electric Co. v. Commissioners of Sewerage of Louisville, 236 Ky. 376, 33 S.W.2d 344 (1930), the Court said that the gas company placed its pipes in the streets of the city, subject to the right of the public, through its proper municipal authorities, to make such use of the streets as might be necessary to protect the public health and safety. The city cannot be deprived of the power in the future to make such use of the streets as public health or the public safety require and the gas company took its rights under its franchise, subject to those limitations. The gas company maintained its pipes in the city streets subject to the police power of the city.
The Court in Union Light, Heat & Power Co. v. Louisville & N.R. Co., 257 Ky. 761, 79 S.W.2d 199 (1935), quoted with approval form a decision of another jurisdiction that the general rule is and always has been that public utilities must relocate their properties in the highway when public necessity requires. Such rights as a public utility has in streets are subordinate to the paramount rights of the public. Furthermore, in
Commonwealth, Dept. of Hwys. v. Louisville Water Co., Ky., 479 S.W.2d 626, 628 (1972), the Court said in part as follows:
"The rule of law stated in
Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308 (1954), is that a utility company must relocate its facilities in the public streets when changes are required by public necessity or convenience. The risk of loss occasioned by such changes is on the utility. . . ."
". . . Whatever may be its obligations to its customers or to the public, the utility's dependence upon the public streets as a location for its facilities is subject to whatever expense and inconvenience may result to it from a change in what the public reasonably chooses to do with respect to those streets. . . ."
However, in
Pennyrile Rural Electric Cooperative Corp. v. Higgins, Ky., 379 S.W.2d 467 (1964), the Court said that in absence of a contractual obligation to do so, a public utility is not obligated to relocate its facilities already off the government's right of way.
"Our ruling in
Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308, does not govern this case; there the rule was reaffirmed requiring the utility to remove its facilities from the public right-of-way at its own expense. The decision does not stand for the proposition that the utility is required to remove facilities from its own privately acquired right-of-way on relocation of the highway. " (Emphasis supplied by the Court.)
In connection with the above-quoted matter see also
Ward v. Southern Bell Telephone and Telegraph Co., Ky., 436 S.W.2d 794 (1968) and
Panhandle Eastern Pipe Line Co. v. State Highway Com., 294 U.S. 613, 79 L. Ed. 1090, 55 S. Ct. 563 (1935).
While we have not found a Kentucky case identical to your factual situation, the fact remains that the city has exclusive control of the public ways in the city. Furthermore, while the project (the floodwall) does not specifically relate to the city streets, the city does have the authority to establish a flood control system for the purpose of protecting property, including the city streets. Thus, in absence of a case to the contrary, it is our opinion that the public utilities whose pipes and other apparatus are under the public streets and right of ways may be required to move those pipes and apparatus at their expense when the city in the public interest decides to construct a floodwall which necessitates the relocation of the pipes and apparatus of a public utility under city streets and right of ways.
Your second question asks about KRS 76.630 which provides that if a sewer district determines that pipes and other apparatus of a city water company or a water district need to be removed or relocated because of a sewer district project, the city or the water district shall remove or relocate the pipes and apparatus in question with the costs to be paid by the sewer district. The statute does not cover those situations where someone other than the sewer district decides that the water pipes need to be removed or relocated. We cannot answer your question unless we know who is determining that the pipes should be removed and for what reason, where the pipes in question are located and the authority under which they were placed in that location.