OAG 95-2

January 25, 1995

Subject: “Status” of road or passway as affecting fiscal court's directing county attorney to seek removal of gate.

Written by: Gerard Gerhard

Requested by: Jim Coffey, Investigator, Kentucky Attorney General's Office

Syllabus: A county fiscal court may not lawfully direct the county attorney to seek removal of a gate from a private passway, as no public purpose is involved justifying application of public resources (services of the county attorney) to such effort.

OAGs cited: 92-74; 93-10; 93-60

Statutes construed: KRS 178.010(1)(a); KRS 69.230

Opinion of the Attorney General

The following question, in substance, has been presented:

What is the “status” of the Black Fish Road, in Russell County, as affecting whether the Russell County Fiscal Court may lawfully direct the county attorney to seek removal of a gate from the roadway?

In our view, that portion of the Black Fish Road that serves principally as a means of access to private property, is a private passway. It does not serve a public purpose that might provide a lawful basis for the Russell County Fiscal Court to direct the county attorney to seek removal of a gate that is situated on private property and across the passway. Discussion follows.

By letter of March 14, 1994, you asked, on behalf of the Russell County Fiscal Court, for an opinion concerning the “status” of what is evidently known as the Black Fish Road, in Russell County. Based upon follow up communication with you, we understand that by “status” of the road, you mean its status as affecting whether the Fiscal Court may lawfully direct the county attorney to seek removal of a gate that has been placed across the road or passway.

Factual Information Provided

Your letter was accompanied by certain interview summaries, later supplemented by additional information requested by the undersigned. From these items we note, in summary, the following:

1. In “steamboat days” the road was allegedly heavily traveled.

2. In 1918 and 1920, by order of the “Russell County Court,” certain parties were designated as “supervisor” of a road termed the “Black Fish Road,” beginning at “the river near mouth of Black Fish Creek,” in Precinct 115.

3. June Richards, a secretary at the Russell County Board of Education, indicated she was born at Black Fish in 1925, that her grandfather had a warehouse at Black Fish, the road in question was the only road to Black Fish and the Cumberland River, and was used by lots of people, and that her grandfather sold his farm to Albert Wooldridge.

4. Current Russell County Magistrate Mickey Garner, and former Russell County Magistrate Homer Mann, thought the Black Fish road had always been a county maintained road.

5. James Wooldridge, the son of Albert Wooldridge, indicated that by the early 1950s, Albert Wooldridge was the only landowner on Black Fish road, that the county had occasionally done some work “on the hill,” and that where the locked gate is now, there was a wire gate most of the time for the last forty or so years.

6. Herman Duncan indicated that in the summer of 1991, under orders of the county highway foreman, he graded places that needed to be graded to within sight of the Wooldridge's house at the mouth of Black Fish and on Black Fish Road, and that there was not a gate up at that time.

7. Current Russell County Judge/Executive Charles Smith indicated that the current list of county roads showed the Black Fish Road to be 4 tenths of a mile long. Such distance, it was noted, would expire quite a distance before reaching the present location of the Wooldridge's gate.

8. As reflected by a copy of the orders for the Russell County Fiscal Court June 14, 1993 (Order Book page 543), the then constituted Russell County Fiscal Court, upon motion of Magistrate Mickey Garner, voted unanimously to have the county attorney take the necessary legal action “to have the gate removed from Black Fish Road.”

9. As reflected in the memorandum of interview of Russell County Magistrate Mickey Garner on October 9, 1994, Garner indicated: (1) The Black Fish Road begins on the west side of Jump Off Road and runs about 4 tenths of a mile; (2) it serves three property owners; (3) that as far as a “public purpose” of the road, “residents of the community used to use the Black Fish road to get to the Cumberland Road” (sic) (probably river); (4) that approximately twelve years ago, as a county employee, he “personally gravelled the road all the way to the Cumberland River”; (5) that, as far as who is seeking removal of the gate, it is basically the Carnes and McClure families and their friends.

On Site Observation

On Saturday, December 10, 1994, on personal time, and without charging the expense of mileage or other cost (e.g., film, processing) to the Commonwealth, the undersigned traveled to Russell County to view the road or passway here involved.

In Russell Springs, the undersigned met Mr. James Wooldridge, son of Albert Wooldridge. Albert Wooldridge is understood to be the owner of the property in which the road in question terminates. It had been previously arranged that Mr. James Wooldridge would drive the undersigned over the course of the road or passway in question.

What is termed here the “Black Fish Road,” is an approximately two mile long, one lane, dead-end passway, parts of which are a creek bed. It begins as a gravel roadway, exiting northward from the Jump Off Road, which begins on the west side of U.S. Highway 127 in southern Russell County (See exhibit 1).

About 4 tenths of a mile of the Black Fish Road, beginning at the Jump Off Road, is apparently officially recognized as being in the Russell County Road System (See portion of General Highway Map for Russell County, Exhibit 13). Perhaps 200 feet prior to the cemetery, a passway, just wide enough to accommodate a vehicle, exits to the west, as a coarsely graveled or rocked downward incline (Exhibit 3). The obvious “gravelled” or rocked area continues a relatively short distance, perhaps two or three hundred feet (Exhibit 4), and thereafter the passway becomes little more than an unimproved trail, sometimes consisting of a creek bed, involving a number of “fords,” or places in which a vehicle must descend into the creek in order to reach the continuation of the trail or passway (Exhibits 5-11). The passway is perhaps two miles in length, from what might be termed its beginning near the cemetery, to its termination, at what is understood to be the now unoccupied Wooldridge homestead (Exhibit 12), on elevated ground alongside the Cumberland River.

The gate in question (actually two gates are immediately adjacent to each other) (Exhibit 9), was apparently installed by members of the Wooldridge family in 1992. The gate is perhaps a mile from the beginning of the passway, and is understood to be located entirely on or within the Wooldridge property. Once through the gates, the passway in question is entirely within Wooldridge property, within which the passway terminates. There are no apparent extensions from the passway which would serve as routes to adjoining property of others, that is, the passway does not provide apparent developed or specific vehicular access to the property of others.

Legal Analysis

From the information provided, it is clear that the county has “accepted” as a part of the county road system (KRS 178.010(1)(a)), only a portion (perhaps .4 of a mile) of what is termed the Black Fish Road, beginning at the junction of the Black Fish Road with the Jump Off Road (Summarized remarks, County Judge/Executive Charles Smith, enumerated item 7, and Magistrate Garner, enumerated item 9(1) (above), and map portion, Exhibit 13). The gate in question is not within the portion of the road or passway that has apparently been accepted in the county road system (Summarized remarks, County Judge/Executive Charles Smith, enumerated item 7, above).

Section 171 of the Constitution of Kentucky provides, in part pertinent here, that taxes may be collected for public purposes only. Since the services of the county attorney are paid for by public tax revenues, his official services cannot be lawfully applied to a private matter. Such application would have the effect of applying tax revenues to a private rather than a public purpose, in contravention of Section 171 of the Constitution of Kentucky.

It follows that whether the Russell County Fiscal Court may lawfully direct the county attorney to seek the removal of the gate in question, depends upon whether the gate blocks a “public road,” such that there would be a public purpose that might justify the fiscal court in making such direction.

Although some persons might have used the road or passway in question in “steamboat times,” those times passed long ago. Since the 1950s, the property on which the gate is located has apparently been owned by Albert Wooldridge (enumerated item 5, above). The road in question , except perhaps for that small portion leading from the Jump Off Road to the cemetery, appears to serve principally, if not exclusively, as a means of accessing the Wooldridge property. Such access does not, in our view, involve a public purpose.

The circumstances related to the Black Fish Road (at least that portion leading off toward the Wooldridge homestead) are comparable to those described by the Kentucky Supreme Court in Sarver v. County of Allen, Etc., Ky., 582 S.W.2d 40, 43 (1979), in which the court, in the course of directing that a fiscal court order accepting a road as a county road be set aside, stated:

The evidence leaves no room for doubt that for over thirty years, and probably longer than that, . . . 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 . . . .

As was also observed in Sarver:

A public road that is not a 'county road' can be abandoned without formal action. [Citations omitted.] When the public has acquired the free use of a roadway by user . . . it may abandon that right by a long period of nonuser.

(Sarver, 42-43.)

In our view, even if the road in question might have at one time been a public orad, it no longer has such status. Such status, if any, was long ago abandoned, as indicated by the fact that there is no allegation that the passway has been used by the public since “steamboat times,” and by the condition of the passway (See Exhibits 3 - 11), which belies use by the “general public” (see Rominger, below). Again, the only apparent purpose of the passway, as it passes through the gate in question, is for the purpose of access to the Wooldridge property.

We note also the observation of the Court in Rominger v. City Realty Company, Ky., 324 S.W.2d 806, 808 (1959):

It has been pointed out that one of the essentials of the establishment of a road by prescription is the use of the land in question by the public and such use must be by the public generally as a way common to all; the mere use by a few individuals, from time to time, as distinguished from the public generally, does not constitute such use as creates title in the public by prescription. See 39 C.J.S. Highways � 5, pp. 923-924.

The fact that two families and their friends (enumerated item 9(5), above) want a gate removed does not constitute, under the facts here involved, a public purpose upon which the Russell County Fiscal Court may lawfully direct the county attorney to take official action to seek removal of the gate in question.

For the reasons indicated, we believe the “status” of the Black Fish Road, except perhaps for that several hundred foot portion leading from the Jump Off Road to the cemetery, is that of a private passway. Accordingly, in our view, the Russell County Fiscal Court has no lawful basis for directing the county attorney to seek removal of the gate(s) in question.

Any portion of the road or passway in question that does not serve a public purpose should be removed from the county road system in accordance with statutory procedures. See OAGs 92-74 and 93-10.

To the extent the question might be raised, we believe the county attorney has no independent duty, pursuant to KRS 69.230, to pursue removal of the gate in question. A public purpose is not present to justify such action. See OAG 93-60 (copy attached).

A. B. Chandler III

Attorney General

Gerard R. Gerhard

Assistant Attorney General