Request By:
Mr. Drewie Muncy
Martin County Attorney
Box 411
Inez, Kentucky 41224
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that the state and county have maintained a certain road in Martin County for several years. A problem has arisen concerning who has the legal right to convey an easement for a gas line a local gas company wishes to relocate on the road right of way. In 1956 certain lands were conveyed by a man and his wife to the Commonwealth of Kentucky for the use and benefit of the Department of Highways. The deed recited that the conveyance is made in contemplation of the construction and maintenance of the subject road, according to plans on file in the Department of Highways, Frankfort, Kentucky. The deed is in the form of a general warranty, fee simple deed. See KRS 177.081, requiring Commonwealth deeds arising out of condemnation to be in fee simple. See
Haragam v. American Fed. of Grain Millers Int., Ky., 445 S.W.2d 131 (1969) 133. The overall language of the deed does not indicate that a deed of easement was intended. See 25 Am.Jur.2d, Easements and Licenses, § 24, p. 436, indicating that "Implied easements are not favored by the law or by the courts, because they are in derogation of the rule that written instruments speak for themselves."
The Department of Transportation has informed us that the state's title to the road in question and the maintenance responsibility for the road have not been transferred to Martin County. Enclosed herewith is a Department of Transportation map of Martin County pinpointing in red mark the road segment in question. Cf. KRS 177.020(4), relating to the elimination of a state primary road by the
Bureau of Highways, and Department of Highways v. Current, 299 Ky. 127, 184 S.W.2d 879 (1944) 880, 881.
Under the above facts, it is our opinion that only the Commonwealth of Kentucky has the right to permit the gas company to run their gas line along the subject road right of way. Thus the gas company would have to apply to the State Bureau of Highways for a permit to locate such a gas line on the road right of way in question, pursuant to the terms of KRS 177.106. Any such encroachment permitted to be placed on the road right of way which is found by the Bureau of Highways to be interfering in any way with the safe, convenient and continuous use and maintenance of such road shall upon 30 days' notice to the gas company, under KRS 177.106(1), be removed or relocated by the gas company.
Also see KRS 416.140, providing for gas companies' acquiring rights along public roads rights of way under certain conditions.
In
Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410, 189 S.W.2d 357 (1945), the Court held that "Under KRS 416.140 the state has reserved to itself the right to grant the named utilities permission to use public roads, and has not delegated that right to any of its political subdivisions." (Emphasis added). The fact that the 1908 version of subject statute was later amended [in 1916 and 1926] to drop the phrase, "after making just compensation," was explained by the Statutory Reviser in his "notes and Annotations" in 1944 as being an omission based upon the fact that the Legislature did not intend to provide for condemnation of public property.
Thus KRS 177.106 and 416.140, being on the same subject, must be considered in pari materia and considered as parts of a connected system. Any apparent conflicts must be reconciled.