Request By:
Honorable Lawrence L. Pedley
Attorney at Law
2100 First National Tower
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
As general counsel for the Louisville Water Company you raise the following question:
"On behalf of the Louisville Water Company I request your Opinion as to the applicability of KRS 416.560 to Louisville Water Company. Is Louisville Water Company a department, instrumentality, or agency of the City of Louisville, within the intent of KRS 416.560, and therefore required to request the applicable governmental unit to institute condemnation proceedings on its behalf?"
Our response to your question would be in the affirmative. The Louisville Water Company was organized as a private corporation by a special act in 1854, and operated as such until the enactment of KRS 96.230 to 96.310 in 1906, which changed its status to an agency of the City of Louisville. See Board of Education of Jefferson County v. Louisville Water Company, Ky. App., 555 S.W.2d 587 (1977). In several prior decisions the Court declared that the Louisville Water Company was in the category of a municipally-owned utility. See Louisville Water Company v. Public Service Commission, Ky., 318 S.W.2d 537 (1958); McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197 (1961) and OAG 69-696.
As you have pointed out, KRS 96.080 authorizes anyone owning and maintaining a water company to condemn land and material it deems necessary in the manner prescribed in the eminent domain act of Kentucky which is found in KRS 416.540 and KRS 416.670. KRS 416.560(1) and (2) to which you also refer reads as follows:
"(1) Notwithstanding any other provision of the law, a department, instrumentality or agency of city, county or urban-county government having a right of eminent domain under other statutes shall exercise such right only by requesting the governing body of the city, county or urban-county agrees, it shall institute such proceedings under KRS 416.570, and all costs involved in the condemnation shall be borne by the department, instrumentality or agency requesting the condemnation. "
"(2) If any department, instrumentality or agency of a city, county or urban-county government operates in more than one governmental unit, it shall request the governing body of the city, county or urban-county government wherein the largest part of the individual tract of the property sought to be condemned lies, to institute condemnation proceedings on its behalf."
Under the circumstances, the Louisville Water Company, an agency of the City of Louisville but which also operates outside of the city and in Jefferson and Oldham Counties, including several small cities, would, we believe, be subject to the requirements of KRS 416.560 before condemnation proceedings can be instituted.