Request By:
Mr. J. D. Craddock III
Hart County Attorney
Courthouse
Munfordville, Kentucky 42765
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions relating to the applicability of KRS 179.470 to Hart County. That statute concerns generally a fiscal court's taking over maintenance responsibilities of certain subdivision streets or roads.
Hart County has a total population of 15,440 and contains three (3) incorporated cities which are:
Horse Cave - Population 1,978 - Fifth Class City Munfordville - Population 1,720 - Fifth Class City Bonnieville - Population 327 - Sixth Class City
Your questions read:
"1. How and under what conditions may Hart County accept a road into the County Road System for county maintenance and when are the costs of such maintenance to be paid by the county and when are such costs to be reimbursed to the county by abutting property owners, under the following set of circumstances:
"(A) A street in a subdivision, with a recorded plat, and dedicated to public use, inside the corporate city limits.
"(B) A street in a subdivision, with a recorded plat, and dedicated to public use, outside the corporate city limits.
"(C) A street (road?) outside the corporate city limits, with no recorded plat, but with a high density of occupied housing and otherwise appearing to be a subdivision.
"(D) A street (road?) outside the corporate city limits, with no recorded plat, located in a rural area with a housing density of between 10 and 20 occupied houses per mile."
Under the facts given, subsection (3) of KRS 179.470 would apply to your county. Thus the Hart Fiscal Court could [KRS 179.470 is not mandatory] maintain, in question 1(A), the subdivision street if the street is located in Bonnieville, a sixth class city, and is at least 200 feet in length. For a general treatment of KRS 179.470, see OAG 80-583, copy enclosed, including the matter of special assessments against abutting properties. It must be noted that KRS 178.010(2) carefully provides for the retention of exclusive jurisdiction of cities, including sixth class cities, over city streets; however, KRS 179.470(3) contains the language "notwithstanding the provisions of KRS 178.010(2)." This simply means that the exclusive jurisdiction of the sixth class city over its streets must give way to the fiscal court where a city street segment is taken into the county road system under KRS 179.470. The city can, where the county applies KRS 179.470, be absolved from the duty of maintaining such city street. Letcher County v. Town of Whitesburg, 162 Ky. 604, 172 S.W. 1041 (1915).
The various conditions of KRS 179.470 were dealt with in OAG 80-583.
As relates to question 1(B), the answer in question 1(A) applies. KRS 179.470 may be applied.
Concerning question 1(C), KRS 179.470 would not apply, since the street is not "dedicated to public use. " The essence of dedication is that it shall be for the use of the public at large. Grinestaff v. Grinestaff, Ky., 318 S.W.2d 881 (1958) 883. The case just cited points out that easements may be created by (1) express written grant, (2) implication, (3) prescription, or (4) estoppel. An actual user or formal acceptance is not necessary to complete the irrevocable dedication by a recorded plat. Potter v. Citation Coal Corporation, Ky., 445 S.W.2d 128 (1969). Here there is no recorded plat.
Let us now consider question 1(D). The answer is the same given in question 1(C). The street has not been dedicated to public use, which dedication to public use is expressly required by KRS 179.470.
It must be kept in mind that KRS 179.470 is only an alternative approach. The fiscal court, in its sound judgment, can accept subdivision roads into the county road system pursuant to KRS 178.010, 178.115 or 178.080. See OAG 80-583. In Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979), the court ruled that a fiscal court may accept a road into the county system under the conventional system (see KRS 178.010 and 178.115), even though the road was not previously dedicated to public use.