Request By:
Mr. S. Arnold Lynch
Attorney at Law
Suite 414
Marion E. Taylor Building
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The East Kentucky Power Cooperative, Inc., proposes to construct a transmission line across certain property owned by your client, and has notified the client that it intends to enter upon his land in order to make surveys and appraisals. You have notified the Co-op that it should deposit with the county court clerk a bond of at least the last assessed valuation of the property in conformity with KRS 416.130(1).
You enclose a copy of its reply dated October 14, 1981, stating that this statutory requirement is not applicable in the premises. You disagree, and therefore request an opinion from this office on the question whether a corporation organized for the purpose of distributing and selling electricity is required to post bond before making survey and appraisal of private property for the purpose of constructing a transmission line?
Under KRS 416.130(1), any corporation authorized under Kentucky law to produce and supply electricity for heat or light may cause surveys to be made for its proposed conduits or transmission lines, and for such purposes may enter upon such lands for the purpose of making the survey, subject to liability for any damage done. In addition, that subsection provides:
"Before entering upon any land for such purposes, the corporation shall deposit with the clerk of the county in which the property is located, a bond to the Commonwealth in a penal sum fixed by the county judge/executive at not more than double the last assessed valuation of the property to be surveyed or examined, conditioned to indemnify all persons for actual damages sustained on account of making any examination or survey."
Subsection (2) of KRS 416.130 provides that when necessary (when the parties cannot agree), the corporation may condemn such property in the manner provided in the Eminent Domain Act of Kentucky.
Corporation counsel for East Kentucky Power contends that the bond requirement of KRS 416.130(1) has no application, since it is not a part of the current Eminent Domain Act of Kentucky. First, under KRS 279.110(4), a rural electric cooperative corporation (which is the case of East Kentucky Power) has the right of eminent domain in the manner provided in the Eminent Domain Act of Kentucky. The Eminent Domain Act of Kentucky, so referred to in subsection (4) above, is compiled as KRS 416.540 to 416.670. In fact, KRS 416.680 refers specifically to KRS 416.540 to 416.670 as the Eminent Domain Act of Kentucky. He further contends that KRS 416.560(4) provides that prior to filing of a petition to condemn, the condemnor agents shall have the right to enter upon any land which it has the power to condemn, in order to make surveys, appraisals, etc., provided that the owner of the land or the party in whose name the property is assessed has been notified ten (10) days prior to entry on the property. "Any actual damages sustained by the owner of a property interest in the property entered upon by the condemnor shall be paid by the condemnor and shall be assessed by the court or the court may refer the matter to commissioners to ascertain and assess the damages sustained by the condemnee, which award shall be subject to appeal." (Emphasis added).
KRS 416.560, as a part of the Eminent Domain Act of Kentucky, was enacted in 1976 (1976 Acts, Ch. 140, § 4). It contains no provision for a bond, in connection with a prepetition (condemnation) survey of the land.
The provision in KRS 416.130(1), relating to the condemnor's executing a bond to go on the land prior to filing of a petition for condemnation, was mentioned in the 1942 codification of the Kentucky Revised Statutes. In the latest, 1978, amendment of KRS 416.130(1), the provision is brought forward. (1978 Acts, Ch. 384, § 522). The 1976 amendment (1976 Acts, Ch. 140, § 123) introduces the element that the electric corporation may condemn the property in the manner provided in the Eminent Domain Act of Kentucky.
In view of the legislative history, above, it is our opinion that the later legislation, KRS 416.130(1), amendment thereof as of 1978, is controlling over KRS 416.560(4). In Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400, Judge Clay for the court wrote that "It is an elementary rule of statutory interpretation that whenever in the statutes on any particular subject there are apparent conflicts which cannot be reconciled, the later statute controls." However, there is sound reason in the observation that, although KRS 416.130(2) provides that condemnation shall be brought in the manner provided in the Eminent Domain Act of Kentucky and subsection (1) provides for a bond to cover pre-file damages, KRS 416.560(4) merely declares a cause of action for any pre-file damages, and thus there is no basic disharmony or real conflict, since the bond merely guarantees recovery for any damages under the terms of the bond.
In addition, KRS 416.130(1) controls, since it is the later and more specific statute on that particular subject of pre-file survey and damage to land. Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939) 239.
Therefore, we conclude that the East Kentucky Power Cooperative, Inc., is required to post the bond mentioned in KRS 416.130(1) before making a survey and appraisal of private property for the purpose of constructing a transmission line, and prior to the filing of a petition for condemnation.