Request By:
Hon. Thomas H. Bugg
Hickman County Attorney
217 East Clay Street
Clinton, Kentucky 42031
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
Re: Whether County May Accept into County Road System a Roadway Seventeen Feet Wide. AGO Corr. No. 91-(O)-590.
By letter of April 17, 1991, you ask whether the county can take a "17 foot wide road into the Hickman County Road System, making it a county road, without condemning 13 additional feet to make the road 30 feet wide. " Your question is posed in light of the road, though privately owned, having been used by the public for more than 20 years, and in light of a previous opinion of this office, OAG 64-148, which indicated, in part, that the 30 foot minimum right-of-way for county roads imposed by KRS 178.040(2), applied to "new locations and to new roads and not to existing public roads taken over by county officials."
In our view, subject to exceptions not relevant to the facts you have presented, roads accepted into the county road system after the effective date of Acts 1964, ch. 68, are required to have a minimum right-of-way width of 30 feet. The rationale expressed in OAG 64-148 for excluding existing roads from the minimum right-of-way width requirement of KRS 178.040(2) is no longer applicable in view of the enactment noted. Discussion follows.
KRS 178.040(2) provides:
All county roads hereafter established shall occupy a right-of-way not less than 30 (30) feet wide, but the fiscal court may order it to be a greater width. All roads added to the county through road system in a county containing a city of the first class in accordance with KRS 178.333 shall occupy a right-of-way width as ordered by the fiscal court.
(Emphasis added.)
This office observed in OAG 83-88 (copy enclosed) , involving facts not too variant from those you are concerned with, and regarding the statutory minimum right-of-way for a county road, that "acquiring of a minimal right-of-way of thirty (30) feet is mandatory . . . ."
In OAG 83-290 (copy enclosed) , we observed:
[I]f 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).
Consistent with the views expressed in OAG 83-88 and OAG 83-290, we believe a road accepted into the county road system must have a minimum right-of-way width of 30 feet, irrespective of whether it had previously existed as a road used by the public for a substantial period. If those owning land necessary for obtaining the required right-of-way will not willingly give or sell such land to the county, the necessary land will have to be obtained by the county through condemnation prior to accepting the road into the county road system.
OAG 64-148, mentioned in your letter, focused on the meaning of the word "established" as used in KRS 178.040(2) (above). The opinion appears to reason that an "existing public road" taken over by the county would not be one "hereafter established" within the meaning of KRS 178.040(2), since the term "establish" meant "build" or "originate," and thus was applicable only to "new locations and to new roads" and did not apply to "existing roads taken over by county officials."
Subsequent to issuance of OAG 64-148 in February of 1964, the legislature amended KRS 178.010 (Acts 1964, ch. 68 § 1,) to provide, in part, that:
'County roads' are public roads which have been accepted by the fiscal court of the county as a part of the county road system . . . .
Given the language noted, "establishment" of a public road as a "county road" occurs when a public road is accepted by the fiscal court as part of the county road system, irrespective of when such road was built or originated. It follows that a public road "accepted by a fiscal court into the county road system" after the effective date of Acts 1964, ch. 68 § 1 (June 18, 1964), must have a minimum right-of-way width of 30 feet. KRS 178.040(2); KRS 178.010(1)(b).
OAG 64-148 is hereby overruled to the extent it concludes that "subsection (2) of 178.040 applies to new locations and to new roads and not to existing roads taken over by the county officials . . . ." Upon review incident to this opinion, we do not find such limiting language in KRS 178.040(2). Had the legislature wanted to exempt "existing roads" from the minimum right-of-way width requirement of KRS 178.040(2), it could have done so. It has not. When the legislature has made no exception to the positive terms of a statute, it will be presumed to have intended to make none. Hawley Coal Co. v. Bruce, Ky., 67 S.W.2d 703 (1934). The express direction of the legislature stands. KRS 178.040(2); 178.010(1)(b); OAG 83-88; OAG 83-290.