[1993/oagheade.htm]

OAG 93-60

September 3, 1993

Hon. George T. Hays

Jackson County Attorney

P. O. Box 748

McKee, Kentucky 40447

Re: Whether County Attorney Has Obligation as County Attorney to Contest Blockage of "Public Road" Not Accepted as a "County Road."

Dear Mr. Hays:

By letter of May 11, 1992, and in follow-up correspondence dated April 7, 1993, you ask whether an "unmaintained" dirt road, accessible only to off-road vehicles, is considered a "public road under Kentucky Revised Statutes K.R.S. 69.230, and if [your] duties as county attorney include trying to open such roads that run through privately owned land."

You indicate, in substance, that there are numerous old dirt roads crossing private lands in Jackson County that are used on a regular basis by the public for recreational purposes such as off-road vehicle driving, and horseback riding, etc.

In our view a county attorney does not have a duty to pursue the opening of a "public road," which has not been accepted as a "county road," in order to enable use of such road for the personal recreational purposes of some members of the public, as such task does not involve a public purpose justifying the application of public resources. Discussion follows.

KRS 69.230 provides that:

The county attorney shall oppose the wrongful opening, alteration or discontinuance of any public road.

This statute must, in our view, be read in light of the principle set forth in section 171 of the Constitution of Kentucky, that public revenues may only be expended for public purposes. Given that provision of Kentucky's Constitution, the duty imposed upon the county attorney by KRS 69.230 is operative only where a public purpose is involved.

Under the facts you have presented, certain roads, that have not been accepted as county roads (KRS 178.010(1)(b)), are used by some members of the public in connection with personal recreational activities, such as four-wheeling (as with off-road vehicles) and horseback riding. Such pursuits do not involve a public purpose which the county attorney would have a duty to protect pursuant to KRS 69.230, in view of section 171 of Kentucky's Constitution.

Stated another way, while in circumstances involving a public purpose, a county attorney would have a duty, pursuant to KRS 69.230, to oppose the wrongful opening, alteration, or discontinuance of a public road, that duty is not present where the purpose is to advance private interests - here individual recreational use of unimproved "public roads" across private lands, where such roads have not been accepted as a "county road." Constitution of Kentucky � 171. For analogous reasoning, see Opinions of the Attorney General (OAG) 62-778, 71-339, and 80-613 (copies enclosed), and cases cited in those opinions.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General