Request By:
Mr. Jim G. Vanover
Assistant Pike County Attorney
P.O. Box 231
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office on the following question:
"Does the fiscal court of a county have the authority or standing to seek legal redress when a 'public' road is blocked, or, does the court's authority only encompass actions involving 'county roads' as that phrase is defined in KRS 178.010(b)?"
A county road is a road taken into the county road system by a formal order of fiscal court. See KRS 178.010 and
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). Thus a "public road" is not necessarily a county road. The court, in Sarver, above, explained that it is not necessary to the establishment of a proposed county road that it be an existing public road. The court said that 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." Of course a fiscal court can only bring a road into the county road system, provided that from then on it subserves a public purpose. See §§ 3 and 171, Kentucky Constitution. Thus a county road, as formally established, must constitutionally be a public road for that reason. The public must have access to it. Thus county roads are public property.
The fiscal court can file a suit, under the theory of a public nuisance, to enjoin a defendant who obstructs a "county road" , as defined and explained above.