TO BE PUBLISHED
Hon. Alan George
Assistant County Attorney,
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.
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
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.
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).
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
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.
Gerard R. Gerhard
Assistant Attorney General