Request By:
Mr. James H. Lambert
Rockcastle County Attorney
P.O. Box 278
Church Street
Mt. Vernon, Kentucky 40456
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to your duties in connection with a road problem, which you describe as follows:
A magistrate in Rockcastle County asked me to undertake a civil action on behalf of the county. The facts are basically these: This particular magistrate leased coal land which is not adjacent to a traveled roadway. To reach the coal bearing land, one must travel an unused, or almost unused, roadway. Whether or not this is a county road is in dispute. The magistrate says it is a county road; the land owner, who owns on each side of it, says it is not a county road and that he owns it. Whether this roadway is a county road or not, I am advised that it serves only two or three families. The land owner has put a fence across the road and is attempting to make the coal company who sub-leased from the magistrate pay him twenty-five cents per ton for all coal that is taken out. To avoid paying the twenty-five cents per ton, the magistrate wishes me to undertake some type of action to "unblock" the road.
Your question is:
Under this set of facts, does the county attorney have a responsibility as part of his official duties to undertake a long and lengthy quiet title action with no additional compensation.
First, the county can only take official action through the fiscal court by majority vote. See KRS 67.040, 67.078, 67.080, and 67.083. No individual magistrate can require you to do anything in connection with county government. Unilateral action and unilateral requests for county action are in this context meaningless.
Next, there can be no "county road" in the legal and technical sense until and unless the fiscal court, as a body, enacts an order or resolution specifically making a particular road a part of the county road system. See KRS 178.010(1)(b), which defines "county roads" as "public roads which have been accepted by the fiscal court of the county as a part of the county road system . . ." However, as we said, the acceptance by the fiscal court of a road requires the formality of an entered order or resolution. See Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). The Supreme Court of Kentucky, in Sarver, above, made it clear that a road may be "public" by virtue of public use for 15 years, but it is not a "county road" until the fiscal court has formally accepted it. Justice Palmore, for the court, said this in that regard at p. 41:
The obvious reason for this particular distinction is, of course, a public policy against holding counties responsible for the upkeep of any and all highways and biways that chance to become "public" through processes of dedication or prescription over which the counties have no choice or control.
As KRS 178.010(b) necessarily implies, most "county roads" were "public roads" before they were accepted as county roads, but it is not necessary that this be so, because a county is statutorily empowered to lay out and establish a county road before acquiring the necessary right-of-way from the owners of the property over which it will be opened. Cf. KRS 178.080.
Under the facts you have given, the county attorney has no responsibility as a part of his duties to undertake a lawsuit testing title in the roadway in question. In the event the fiscal court as a body enacts a resolution accepting the roadway as a part of the county road system, you have a duty to take all reasonable legal action to determine the title status, if it becomes actually necessary.