Request By:
Mr. Tommy Yarbro
Road Foreman
% County Judge Executive Office
Route #1
Hickman, Kentucky 42050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter about a road reads as follows:
As Fulton County Road Supervisor, I would like to request an Attorney General's opinion concerning easements. The road in question runs through one man's property and only one other citizen, a farmer, must use this road. Does this road meet the criteria of a county road?
This particular road has been maintained by the county for several years but the county has never received an easement. If this road does meet the criteria for a county road, is the county required to obtain an easement before any additional work is done?
A "county road" is a public road which has been accepted by the fiscal court of the county as a part of the county road system. See KRS 178.010(1)(b). 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. Since 1914 (enactment of Ch. 80) a formal order of fiscal court has been necessary to establish a county road. Sarver v. Allen, Ky., 582 S.W.2d 40 (1979). Thus after 1914, a formal order of fiscal court is necessary to make it a county road, along with the necessary acquisition of the road easement or fee simple title.
If it is to become a county road, then generally the fiscal court should take steps to acquire the necessary road easement or title, assuming the county has not used it as a public road for 15 years or longer.
In your situation, if the fiscal court has never entered a formal order accepting the road as a part of the county road system and has never acquired the easement or title to the road by instrument or user, it is not a "county road" , as defined in KRS 178.010(1)(b).
However, if the fiscal court has entered a formal order of acceptance under KRS 178.010(1)(b) and if the public user has ripened into a prescriptive easement for 15 years, it is a "county road" . It would be a public road where the fiscal court enters a formal order of acceptance and acquires the easement or title by appropriate legal instruments of conveyance.
Finally, you raise the question as to the circumstances under which the fiscal court may properly accept (formally) a particular road into the county road system, especially where only one or two farms may be involved.
KRS 178.080(3) permits a fiscal court to establish a county road, provided that it "appears to the fiscal court that the interests of the general public may be furthered thereby." (Emphasis added). KRS 178.115 permits a fiscal court to establish a county road, provided that the "necessity for such public road" is made out. (Emphasis added).
Under the broad legislative policy expressed in KRS 178.080 and 178.115, above, the acceptance of a road as a part of the county road system is left to the sound discretion of the fiscal court under the specific guidelines underlined above. See Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960). The action of a fiscal court, in exercising such discretion, could be reviewed, by direct action, in a circuit court under an alleged arbitrary or capricious exercise of the discretion. See § 2, Kentucky Constitution, KRS 23A.010(4), and Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). KRS 23.030, which permitted appeals from all orders of fiscal court in civil cases (where the amount in controversy exceeded $25) to the circuit court was repealed by Acts 1976 (Ex. Sess.), Ch. 14, § 491, effective January 2, 1978. No appeal can be taken from a fiscal court order to the district court, since that court has no appellate jurisdiction. KRS 24A.010(3). As it stands, there is no "appeal", as such, from a fiscal court order.