Request By:
Dr. Howard E. Fisher
Magistrate, Second District
217 East Main Street
P.O. Box 618
Horse Cave, Kentucky 42749
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 178.040(2) provides in part:
" All county roads hereafter established shall occupy a right-of-way not less than thirty (30) feet wide, but the fiscal court may order it to be a greater width. " (Emphasis added.)
This provision was in Section 4288 of Carroll's Kentucky Statutes (Revised to 1930) (enacted in 1914, ch. 80, P. 338, Sec. 2). Later it was contained in KRS 178.040(2), which was amended in 1964 and 1978; however, this provision remained unchanged.
You write that in January, 1982, your Fiscal Court passed an ordinance stating which were county roads. Some of those right-of-ways were as little as twenty (20) feet in width.
Question:
"Are these roads that are less than thirty (30) feet right-of-way legally county roads?"
According to KRS 178.010(1)(b), "county roads" are public roads which have been accepted by the fiscal court of the county as a part of the county road system.
The Court, in Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979), 41, pointed out that since the enactment of Chapter 80, Acts of 1914, a formal order of the fiscal court has been necessary to "establish" a county road.
It is our opinion that any county road established on and after the effective date of the 1914 legislation mentioned in Sarver v. Allen County, above, is subject to a mandated width of thirty (30) feet right-of-way. The Fiscal Court can make it more than thirty feet, but thirty feet in width, as to the right-of-way, is mandated. See also
Rose v. Nolen, 166 Ky. 336, 179 S.W. 229 (1915); and
Illinois Central Railroad Co. v. Hopkins County, Ky., 369 S.W.2d 116 (1963).
Once the Fiscal Court entered an order accepting and establishing the particular county roads in question as a part of the county road system, such roads became county roads under KRS 178.010(1)(b) and Sarver v. County of Allen, above, even assuming that the minimal width of thirty (30) feet was not observe. We find nothing in KRS 178.040 indicating that a failure to meet the minimal width requirement would invalidate the formal acceptance of the road as a county road.
It is now up to the Fiscal Court to acquire the additional right-of-ways which will bring these county roads at least up to the mandated minimal width.
It has been held that where a highway has been laid out pursuant to statutory proceedings, it will be presumed to be for the full legal width.
Black v. Southern Pacific Co., Cal., 12 P.2d 981, 987 (1932). Thus the width ordained by the legislature is conclusive.
Kamerer v. Commonwealth, 364 Pa. 120, 70 A.2d 305 (1950), 308. Thus there is a presumption that a public highway is of the prescribed statutory width unless the contrary is proven.
Hunsaker v. State, 29 Utah 2d 322, 509 P.2d 352 (1973), 354.
Here, if it is proven that certain county roads formally accepted as a part of the county road system were less than the mandated thirty (30) feet in width, the Fiscal Court will have to acquire the additional right-of-way to conform to KRS 178.040(2).