Request By:
Mr. Charles L. Lively
Grayson County Judge Executive
100 Court Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan; Assistant Deputy Attorney General
Several questions have arisen with regard to proper procedures for closing county roads. You request our opinion on four questions.
Question No. 1:
"Does KRS 178.070 have any bearing on discontinuing a road under KRS 178.116?"
KRS 178.116 does not deal with the formal closing of a county road by the fiscal court. It merely declares that any county road, or road formerly maintained by the county or state, "shall be deemed discontinued" and possession shall revert to the owner of the tract of land to which it originally belonged unless at least one (1) of three enumerated conditions exists. Unless at least one of enumerated conditions exist, then the discontinuance of the road is automatic, without formal action of the fiscal court. Subsection (4) of KRS 178.116 reads:
"If a county road has been discontinued under the provisions of KRS 178.070, then by a joint petition of all private parties entitled t o necessary access the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties involved, or by a joint petition of all parties entitled to necessary access the road shall revert to the owner or owners of the tract or tracts of land to which it originally belonged. "
KRS 178.070, on the other hand, involves the formal action of fiscal court in discontinuing any county road. Note that we refer to any county road, not any public road. See
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979) and
Dixon v. Giles, 304 Ky. 354, 200 S.W.2d 919 (1947). That statute reads:
"The fiscal court may direct any county road to be discontinued. Notice must be published, according to the provisions of KRS 178.050, and in addition, notices must be placed at three (3) public places in the vicinity of the road. After the posting of notices as aforesaid, the fiscal court shall appoint two (2) viewers who, together with the county road engineer, shall view the road and report in writing at the hearing what inconvenience would result from the discontinuance. Upon such report and other evidences, if any, the court may discontinue the road."
See also KRS 178.050 and 178.115, relating to discontinuing or altering a county road.
KRS 178.070 has no bearing on the discontinuing of a road by operation of law under KRS 178.116, except that under KRS 178.116(4), where a county road has been discontinued under KRS 178.070, then by a joint petition of all provate parties entitled to necessary access, the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties affected, or by a joint petition of all parties entitled to necessary access, the road shall revert to the owner or owners of the tract or tracts of land to which it originally belonged.
We see, conversely, no intent of the General Assembly to impose KRS 178.116 upon the authority of a fiscal court to close a county road under KRS 178.070. See KRS 178.116(4). However, where a county has taken no formal action to discontinue a county road under KRS 178.070, KRS 178.116 would then apply, provided the terms of the latter statute are met.
Question No. 2:
"If a public roadway, under KRS 178.025, has been out of use for over 15 years, would the property where the public roadway formerly existed, revert to the owner of the property or should the County Fiscal Court discontinue the roadway? "
KRS 178.025 relates to a public road, not a county road. Under KRS 178.010(1)(b), a county road is a public road which has been accepted by the fiscal court as a part of the county road system.
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). County acceptance of a road segment as a part of the county road system requires a formal order of the fiscal court. Though a road may be public because of its publiv use, it is not a county road where the fiscal court has not formally adopted it as a part of the county road system. Thus if the road is merely a public road, and is not a county road, the fiscal court has no responsibility for its upkeep or discontinuance. A public road that is not a county road can be abandoned without formal action of the fiscal court, and a reverter to former owners would occur.
Williams v. Woodward, Ky., 240 S.W.2d 94, 95 (1951). Thus where a pulic road is not used by the general traveling public for at least fifteen continuous and uninterrupted years, an abandonment could be said to have taken place, without any formal action of fiscal court. See Sarver v. County of Allen, above.
Question No. 3:
"If the County Fiscal Court has never formally accepted a public roadway into the County maintenance system, but at one time over 15 years ago maintained the roadway; should the Fiscal Court discontinue the old road if all owners of the property adjoining the old roadway so request?"
As we said above, the discontinuance of a public road, which is not a county road, as defined by KRS 178.010(1)(b), above, requires no formal action of the fiscal court. The fact that the county once maintained it is not controlling. We assume you refer to county maintenace taking place after 1914. Under these circumstances, the fiscal court should appropriately take no formal action in that matter. Formal discontinuance by the county involves only county roads.
Question No. 4:
"What is the procedure for discontinuing a county road or a road formerly maintained by the count under KRS 178.116? If so, is the legal effect of discontinuing a road under KRS 178.116 and 178.070 one and the same?"
KRS 178.070 involves the formal closing of a county road. However, KRS 178.116 requires no formal action of the fiscal court, since the General Assembly has made discontinuance automatic except for the existence of at least one (1) of the described conditions. The statute works by operation of law, not by acts of the fiscal court.