OAG 93-24


March 10, 1993






Hon. Larry G. Kelley

Ballard County Attorney

P. O. Box 668

Wickliffe, KY 42807

RE: County Installing Culvert on County Road Right-of-Way

to Provide Access from County Road to Private Property

AGO Corr. No. 91-(O)-1480.

Dear Mr. Kelley:

You have asked, in substance, whether the county road department may provide at public expense, labor necessary to install a culvert to enhance access to private property from a county road. The property owner pays for the culvert or pipe itself. You explain that the county currently engages in such activity to head off greater costs to the county should the wrong type of culvert or sewer pipe be used, or the installation not be done in proper fashion.

In our view, Kentucky Revised Statute (KRS) 179.380(1), and sections 3 and 171 of the Constitution of Kentucky prohibit a county from providing labor to install a culvert to facilitate access to private property. Discussion follows.

You explain that where a private roadway enters a county road right-of-way, current practice in Ballard County is for the county road department to install a culvert or sewer pipe. In exchange for the county installing the culvert, the landowner is required to pay for the culvert itself. This procedure is followed, you indicate, to ensure use of an appropriate type of culvert or sewer pipe, and its proper installation, so that future problems and associated costs the county might face will be minimized.

KRS 179.180 provides:

(1) The owner or tenant of lands fronting on a public road shall construct and keep in repair all approaches or driveways to and from the public road under the direction of the county engineer.

(2) No owner or tenant shall fill up any ditch or place anything in any ditch so as to interfere with the purposes for which it is made.

(Emphasis added.)

While the language above does not use the word "culvert," we believe that a culvert or sewer pipe installed on a county road right-of-way to facilitate access to private property, in the context here involved, is a part of an "approach" or driveway within the meaning of KRS 179.380(1). The statute expressly provides that an owner or tenant of property fronting on a public road (which would include a county road) -- not the county road department -- "shall construct and keep in repair all approaches or driveways to and from the public road under supervision of the county engineer."

In our view, this language operates to specifically ban the use of county labor to install culverts or sewer pipes under the facts you have presented. Scott v. Massachusetts Bonding & Insurance Co., Ky., 273 S.W.2d 350, 352 (1954). See also, OAG 73-290 (copy enclosed).

We note also that the provision of public labor to install a culvert to facilitate access to private property is inconsistent with Section 3 of the Constitution of Kentucky, which provides in part and in substance, that separate public emoluments or privileges shall not be provided to anyone except in consideration of public services, and with Section 171 of Kentucky's Constitution, which provides, again in substance and in part, that tax revenues (e.g., here county road funds) shall be expended for public purposes only.

We believe that a "culvert" or "sewer pipe," as those terms are used in your letter, are analogous to the bridges we addressed in OAG's 82-180 and 92-74 (copies enclosed).

In OAG 82-180 we observed that a county has no authority to construct a bridge or bridges linking a county (road) to a private drive. We believe that remains the case as of this writing. In OAG 92-74 we observed that a bridge serving as an access to a single residence (as is typical of a culvert joining a private driveway with a county road) does not serve a public purpose for which public funds can be properly expended consistent with sections 3 and 171 of the Constitution of Kentucky. And see, OAG 80-587 (copy enclosed). In our view, the reasoning of these opinions, which we follow here, would ban use of public labor to install culverts to facilitate access to private property.

The purpose of the culverts or sewer pipes here involved is principally to provide private access to private property. Such purpose is not a public one. Cummins v. Fleming County Sportsmen's Club, Inc., Ky., 477 S.W.2d 163 (19972); Sarver v. County of Allen, Etc., Ky., 582 S.W.2d 40 (1979). The culverts here involved are not "necessary" to a county road such that they would be included within the definition of a county road as set forth in KRS 178.010(1)(b). See, for example, OAG 83-267.

Additionally, we note that if the county were to carry out installation of culverts to join private drives with a county road, it would be engaging in the private construction business, in competition with private contractors, for work needed to facilitate private purposes. As a general rule, a county may not engage in private enterprise, even where a landowner agrees to pay the cost of public labor. OAG 62-24; OAG 68-86 (copies enclosed). A review of KRS 67.083, which establishes the general public functions regarding which a fiscal court may act, does not reveal a provision authorizing a county to engage in general construction services to join private driveways with county roads.

The county's interest in the use of appropriate culverts or sewer pipes, and their proper installation on a county road right-of-way, where a private driveway joins a county road, should be addressed by development of an appropriate procedure established by a county ordinance. Such a procedure would involve, at a minimum: (1) development and publication of specifications (allowing for differing circumstances of different installations) for culverts to be installed on a county road right-of-way, and for their installation and maintenance; (2) provision for an application by an owner or tenant for a permit for a given installation, or for maintenance activities involving construction, requiring submission of a plan for a given installation or maintenance activity involving construction or reconstruction, as well as the scheduled date of work performance and the name and telephone number of the contractor or other party carrying out the work; (3) issuance of a permit prior to work being conducted; (4) inspection by the county road engineer or supervisor; and (5) correction of deficiencies in installation or maintenance.

Development of a procedure similar to that outlined above is consistent with the direction of KRS 179.380(1) that construction and repair of approaches or driveways to and from a public road shall be carried out, by a landowner or tenant of property fronting on a public road, "under the direction of the county engineer." The phrase "county engineer" as used in KRS 175.380(1), means county road engineers, and would mean county road supervisor where applicable. KRS 179.010(2). KRS 179.020(2).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

GRG:par

Enclosures

c: Hon. Bill Graves