Request By:
Mr. Kenneth E. Dillingham
Todd County Attorney
McReynolds Drive
Allen Street
P.O. Box 816
Elkton, Kentucky 42220-0816
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney of Todd County, you request an opinion of this office as to the width of the right-of-way of a county road where there is no record of the county road's dedication, or no record as to any easement or deed. However, all parties agree that the road in question has been dedicated by use and is a county road.
From your letter we gather that under KRS 178.025 the road has been dedicated to the public by use for at least five consecutive years. Under that statute, after five consecutive years of travel without restrictions by the public, it shall be conclusively presumed to be a "public road" . However, in
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979), the Supreme Court of Kentucky drew a distinction between a "public road" and a "county road" . A "county road" is a public road which has been accepted by the fiscal court as a part of the county road system. KRS 178.010(1)(b). From your letter we gather that the fiscal court has accepted it, whatever it is or regardless of its width, as a part of the county road system.
A public user ordinarily ripens into a prescriptive easement in 15 years of open continuous and uninterrupted use under claim of right.
Rominger v. City Realty Co., Ky., 324 S.W.2d 806 (1959), Sarver v. County of Allen, above, and
Luscher v. Lewis, 245 Ky. 64, 53 S.W.2d 170 (1932). The public use need only be such as to show a claim of right to use the land as a highway to the exclusion of any individual right of the owner inconsistent therewith.
Cummings v. Fleming County Sportmen's Club, Inc., Ky., 477 S.W.2d 163 (1972).
It may be noted that KRS 178.025, providing that the five years of public use would create a conclusive presumption of its being a public road, was enacted in 1966. A road can become a public road through dedication of the owner of the property or where the owner suffers it to become a public way by prescriptive easement. Prescriptive easement requires 15 years continuous use by the public as stated above.
Hofgesang v. Woodbine Avenue Realty Company, Ky., 414 S.W.2d 580 (1967). Thus KRS 178.025 is unrelated to the 15 year prescriptive easement rule. It merely provides in effect that any road dedicated by the owner or owners of the property as a public way and used by the general public without restrictions for five consecutive years shall conclusively be presumed to be a public road. However, you have written that there is no record of any owner dedication. Therefore KRS 178.025 has no application to this situation.
Note that the court in Sarver v. County of Allen, above, reiterates the old 15 year of public user in acquiring a prescriptive easement. The case was decided in 1979. Now if KRS 178.025 were interpreted to provide for a public road on the basis of a dedication by use only for 5 years, then it would indeed change the old 15 year prescriptive easement rule. But the courts give it no such mention or interpretation. Thus the old 15 years of public user is still alive or effective. Further, where the 15 year prescriptive use rule is not yet applicable, if this is to be a legal county road, the county will have to acquire the right-of-way by agreement and deeds or by condemnation.
If the 15 year prescriptive easement is present in your situation, then the question remains: What is the width of the right of way? The question really is what width does the prescriptive easement involve?
The answer is that the physical scope or quantum of rights in the road strip (width) acquired is limited by the actual physical extent to which the adverse public user is inconsistent with the dominion and consent of the owner.
Cummings v. Fleming County Sportsmen's Club, Inc., Ky., 477 S.W.2d 163 (1972). In that regard, the width of the right of way may be physically determined, based upon any fences which enclose the road strip, if so, or upon the beaten path made by the public user vehicles. See
Whilden v. Compton, Ky. App., 555 S.W.2d 272 (1977) 276.
KRS 178.040(3), concerning width of county roads, apparently has no application here, in view of the long history of public user. Thus it establishes width requirements for new roads and new locations.
Thompson-Starrett Co. v. Mason's Admr's, 304 Ky. 764, 201 S.W.2d 876 (1947) 881.
If the fiscal court determines that the county interest demands a wider right of way for the road in question, it may condemn under the Eminent Domain Act. See KRS 178.125 .