Request By:
Mr. Kendall Robinson
Attorney at Law
Booneville, Kentucky 41314
Opinion
Opinion By: Robert F. Stephens, Attorney General., By; Carl Miller Assistant Attorney General
You have requested an opinion of the Attorney General as to whether a private individual can condemn a right of way over the land of another under Kentucky's Eminent Domain Act, KRS 416.540-416.670. You point out that the statutes which allowed such a proceeding, KRS 381.580-381.630, were repealed by the General Assembly in 1976.
Normally the Attorney General does not give opinions on hypothetical questions or questions which are of only private interest and which may be just as well researched by private attorneys as by the Attorney General's Office. The administrative regulations of the Department of Law, in fact, prohibit such a practice. 40 KAR 1:020(3)(4). We will make an exception in this case because we have already conducted the necessary research to give an answer.
It is the opinion of the Attorney General that the Eminent Domain Act of Kentucky of 1976 does not authorize the condemnation of a passageway over private property by a private individual. Since the repeal of KRS 381.580-381.630 there is no statute which authorizes such a procedure.
The right of eminent domain is an attribute of sovereignty and is entirely dependent upon legislative authorization. See
Chesapeake Stone Company v. Morland, 126 Ky. 656, 104 S.W. 762 (1907). Even under the old statute now repealed passage could only be condemned across private property for a purpose which would benefit the public. A private owner could not condemn a passway for his exclusive use.
Zella Mining Company v. Collins, 203 Ky. 178, 261 S.W. 1090 (1924).
Since the statute authorizing a condemnation action by an individual has been repealed and no other statute has been enacted to replace it, we believe that the right of condemnation by a private person to gain ingress and agrees to his own land no longer exists in Kentucky.