Request By:
Mr. John D. Sims
Robertson County Attorney
Mt. Olivet, Kentucky 41064
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise two questions about county roads:
Question No. 1:
May a property owner fence off or otherwise block access to an old county road which has not been maintained by the county for many years but which has never been officially closed according to the provisions of KRS Chapter 178? Robertson County has a great number of old county roads which have not been used extensively or maintained by the county since the days of the horse and buggy. As far as I can determine, these old roads, which are mostly grown up with bushes and trees now, have never been officially closed. Some of the property owners have fenced off the entrance of these roads and we are now experiencing a rash of inquiries from property owners adjoining the old county roads to reopen them. Some of these people merely want the right to use the old roads and are willing to clear and improve the roads themselves and some have requested the county to help rebuild the roads, which brings us to question no. 2.
Assuming the old road became a county road on or after 1914, then a formal order of fiscal court is necessary to indicate that the fiscal court established the road as a part of the county road system.
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). KRS 178.010 provides that county roads are those public roads accepted by fiscal court as a part of a county road system.
Prior to 1914, it was recognized that an "acceptance" by the county could be accomplished informally, e.g., by maintenance of the road at county expense.
Riley v. Buchanan, 116 Ky. 625, 76 S.W. 527, 528 (1903).
Now, assuming that the road in question became at one time a part of the county road system under one of the two lines of authority just mentioned, the question arises as to the legal effect of a property owner fencing off or blocking access to the old road right of way?
It is our opinion that once the fiscal court "accepts" a road segment as a part of the county road system, a formal order of fiscal court would be necessary for its effective abandonment by the county. Sarver v. County of Allen, above. If it is determined that the county accepted the road as a county road, then the fiscal court can either abandon it by a formal order or it may improve the road and take legal steps to eliminate the fencing and blocking off activities of adjacent property owners, depending upon what is felt to be the best interests of the county as a whole.
If the facts indicate that the fiscal court never "accepted" the road, formally or informally, as a county road, and the fiscal court does not deem it to be in the public interest to now formally accept it as a county road, then it would appear that the fiscal court has no further responsibility nor interest in the controversy.
If the fiscal court deems the road to be a necessary public and county road, and it has never accepted the road as a county road before, it may do so under KRS Chapter 178.
Question No. 2:
Is a county under a legal obligation to maintain old county roads which have in fact been abandoned to varying degrees and which have not been maintained by the county for over 50 years, but which have never been officially closed? There is no official record of these old roads in the courthouse, as far as I have been able to determine. Some of these roads have been kept open and maintained by adjoining property owners who still desire to use them and some have grown up in bushes and trees and are totally impassable by any type of vehicle or machinery.
If the evidence indicates that the fiscal court either formally (on and after 1914) or informally (prior to 1914) accepted the road as a part of the county road system, then the fiscal court has a duty to maintain it. If the fiscal court did "accept" it as a county road, but now believes it in the best public interest to abandon it as a county road, it must do so by a formal order of fiscal court, as we said above.
If the evidence indicates that the county never formally nor informally accepted it as a county road, then the fiscal court presently has no obligation to do anything about it.