TO BE PUBLISHED

Hon. Alan George

Assistant County Attorney,

Woodford County

110 North Court Street

Versailles, Kentucky 40383

Re: Brooklyn Bridge Road, Woodford County.

AGO Corr. No. 91-(O)-385.

Dear Mr. George:

By letter of March 12, 1991, you posed questions related to the Brooklyn Bridge Road in Woodford County. You asked: (1) whether the fiscal court could choose not to act on reconstructing or closing a portion of the road, thus denying one landowner ingress and egress, and simply leave a "road closed" sign and barrier up, due to an "act of god" (flooding of the Kentucky River having washed away a portion of the bank immediately adjacent to the road), and (2) whether a decision by the court not to reconstruct the road can be equated with a decision to close the road, such that the fiscal court would be liable for devaluation of the affected landowner's property.

Based upon information supplied in your letter, and the undersigned's inquiry, it appears that the Brooklyn Bridge Road does not serve a public purpose. Accordingly, in our view, the road should be discontinued as a county road. Since such discontinuance will effectively deny one landowner reasonable vehicular ingress and egress from his property to the public highways system, Woodford County would presumably be liable for the depreciation in value of the property of the one landowner so affected. Discussion follows.

Background

The Brooklyn Bridge Road in Woodford County is a one-lane (two tire-track) dead-end road, some 1.8 miles long. It is an extension of Jessamine County's Warner Road, which runs west from U.S. highway 68, near the point where that highway crosses the Kentucky River. The Warner Road is hard surfaced, perhaps five-tenths of a mile long, and serves a number of residences and properties. The Brooklyn Bridge Road is a gravel road which begins where the Warner Road ends at the Jessamine/Woodford County line. It serves one house in its first two-tenths of a mile. After passing that house, the Brooklyn Bridge Road travels between two fence posts that give the appearance of a gateway, and thereafter extends for approximately a mile and six-tenths, through the narrow undeveloped strip of land between the channel of the Kentucky River, and the steep hillsides and cliffs that form the northern side of the river valley. It "dead ends" within the property of James Concotelli.

Although it crosses several properties, before dead-ending within Mr. Concotelli's property, the Brooklyn Bridge Road, over most of its length, appears to serve (in terms of regular travel) principally as a driveway or lane for ingress and egress from Mr. Concotelli's property. A bar, which is apparently frequently kept locked (Exhibit 1), is situated at what apparently is the entry to Mr. Concotelli's property. The bar serves, at least when it is in place across the road, to prevent free public access to the approximately five-tenths of a mile from such barrier to the dead-end of the road within Mr. Concotelli's property.

Mr. Concotelli's property consists of perhaps 40 acres. Improvements on the property are understood to be a stone house having 2000 square feet of space, a double garage (possibly with a work shop above it), a "cabin" with 700 square feet of space, and a barn. A family cemetery, apparently known as the Weeping Willow Cemetery, is located on the property.

The property can only be accessed, by car or truck, via the Brooklyn Bridge Road. On the south of the property is the Kentucky River. The rest of the property, except for the path of the Brooklyn Bridge Road, is bounded by the steep hills and cliffs of the river valley. See the copy of a portion of the Wilmore Quandrangle, U.S. Geological Survey topographic map, which accompanies this opinion (The Brooklyn Bridge road extends along the Kentucky river from the line between Woodford County and Jessamine County, to the "Weeping Willow Cem," as indicated on the map).

When Mr. Concotelli bought the property, in January, 1985, it is understood that the Brooklyn Bridge Road was already designated as a county road.

In 1988, as explained by your letter, the Kentucky River flooded and washed out a stretch of the river bank immediately adjacent to the road. The county attempted to fill the eroded or washed out area, at a cost of some $21,000, you indicate, but this work was essentially washed away in subsequent flooding which occurred in January, 1991.

The circumstance, at present, is that, a short distance prior to the road's entry into Mr. Concotelli's property, the Brooklyn Bridge Road proceeds, with barely the width of a car, along a narrow embankment some forty feet above the normal river channel, and for a distance of several hundred feet, along a vertical cliff. In this area, flooding of the river has washed out or eroded the bank which supports or would support the roadway.

When one is in a car in the area where the erosion has occurred, the "road" consists of what might be termed a "ledge," the width of which is little more than the width of a car. Immediately on one side is a vertical cliff, while on the other, some forty feet below, is the river. See exhibits 2, 3, and 4.

Without the expenditure of a substantial sum of money, the bank of the river where the slide or erosion has occurred cannot be replaced so that the road could be made safe to travel. Even if it were replaced, it might simply be washed away again by the river's action.

Because of the potential for a further slide, and the absence of a guardrail (there appears to be no terrain in the area of concern that would support a guardrail) the road is unsafe for general travel by car or truck.

May the Fiscal Court Choose Not to Act on Either Reconstructing or Closing A Portion of the Brooklyn Bridge Road, and Simply Leave Road Closed Signs Up?

In our view the answer is no. On one hand, the fiscal court has a duty to reasonably maintain a road it has adopted into the county road system. See for example, Shearer v. Hall, Ky., 399 S.W.2d 701, 704 (1966) (copy enclosed). On the other hand, the road here involved, in our view, cannot be continued as a county road, since it does not serve a public purpose.

The Brooklyn Bridge Road, over most of its length, serves essentially as a driveway for reaching Mr. Concotelli's property. Although it crosses several properties before reaching Mr. Concotelli's property, the road is along what might be termed the "back" of these properties, which are principally accessed from a different road, on the high ground above the river valley. The fact that the Brooklyn Bridge Road crosses several properties before entering Mr. Concotelli's property does not constitute the road as having a public purpose by serving as an access to more than one property.

The circumstances of the Brooklyn Bridge Road appear similar to those discussed in Cummings v. Fleming County Sportsmen's Club, Inc., Ky., 477 S.W.2d 163 (1972), wherein the court noted, regarding whether a private road had become public:

As one of the witnesses said, 'It has to be a private road it didn't go nowhere but to Uncle Sanders.' Naturally, it has been freely used by anyone having occasion to do business with or pay social calls on the occupants of the property, but since it did not lead to any place in which the general public would have had an interest in going, there could scarcely have been much if any occasion for the general public to use it.

(Id., 165.)

In Sarver v. County of Allen, Etc., Ky., 582 S.W.2d 40, (1979), Kentucky's Supreme Court directed that an order of a fiscal court accepting (see KRS 178.010(1)(b)) a certain roadway as a part of the county road system be set aside. The Court observed:

The evidence leaves no room for doubt that for over thirty years, and probably longer than that, prior to the fiscal court order in this case there had been no travel whatever on the disputed passway except for the purpose of access to the old Lyles and Wyatt Sarver houses, and except for some amount of grading work done by county employes from time to time after Osco Sarver had asked for help in 1958. In short, for thirty years or more the road has had no purpose for which it could have been put to legitimate use by the public. Cf., Cummings v. Fleming County Sportsmen's Club, Inc., Ky., 477 S.W.2d 163, 165 (1972). Its only possible use was to serve the private convenience of the owners or occupants of the Lyles and Wyatt Sarver tracts. Cf. Marrs v. Ratliff, 278 Ky. 164, 128 S.W.2d 604 (1939).

(Emphasis added.)

It appears that the use of Brooklyn Bridge road is similar to the circumstances in the Cummings and Sarver cases, above. The principal use of the road is for private access to private property, rather than for a public purpose. Accordingly, the Woodford County Fiscal Court should discontinue it as a county road. Constitution of Kentucky § 171, Cummings, and Sarver, above (copies enclosed), and see, OAG 92-74, copy enclosed. In closing the road, the court must comply with KRS 178.050 and 178.070.

Is a Decision Not to Reconstruct the Brooklyn Bridge Road Equivalent to A Decision to Close It, Making the Fiscal Court Liable for Devaluation of the Property Affected?

In our view a decision not to secure the erosion or slide area means that the Brooklyn Bridge Road cannot be safely used. Such a decision is thus equivalent to a decision to close the road, which would deny Mr. Concotelli the only means of ingress and egress by car or truck to his property.

Under such circumstance, we believe Woodford County would be liable to Mr. Concotelli for the amount by which his property is devalued as a result of the deprivation of access to his property from the public highway system. Such view is consistent with that in Department of Highways v. Jackson, Ky., 302 S.W.2d 373 (1957), in which Kentucky's then highest court observed, at page 374:

[I]t was made clear in DeRossette v. Jefferson County . . . 156 S.W.2d 165,168, that if the closing of the road will deprive the owner of 'reasonable access' to his land, or of reasonably 'convenient ingress and egress,' he is entitled to damages.

This view was reaffirmed, in principle, in Commonwealth, Department of Highways v. Dotson, Ky., 405 S.W.2d 30 (1966), and was reiterated recently in Com. Transp. Cabinet v. Comer, Ky.App., 824 S.W.2d 881 (1991).

The fiscal court, of course, may want to pursue a declaratory judgment action to obtain a judicial determination as to whether it is in fact liable to Mr. Concotelli under the facts involved.

We have considered whether our views above should be different in view of the fact that the need to close the road arises from what might be termed "an act of God" - i.e., the flooding of the river. We believe such circumstance does not affect the views expressed in this letter.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

GRG:par

Enclosures