Could Kentucky highway departments install driveway culverts where private land meets a public road?

Short answer Yes, under the 1993 AG opinion's road-protection reasoning. A county could install culverts under a uniform policy to protect its road system, and the state could do likewise along state highways. OAG 93-79 expressly overruled OAG 93-24's earlier categorical objection.
State
Kentucky
Opinion
OAG 93-79
Issued
November 17, 1993
Issued by
Chris Gorman, Attorney General of Kentucky
Requested by
Don C. Kelly, Secretary of Transportation

Apply this to your situation

This page answers the general question as of 1993. Ask about yours and see what current Kentucky law means for your facts, with citations you can check.

Disclaimer: This is an official Kentucky Attorney General opinion. AG opinions are advisory and are not binding court precedent. This page is informational and is not legal advice.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

In 1993, Kentucky's Attorney General reversed an earlier opinion about culverts where private property connects to a public road. OAG 93-24 had said a county could not install a landowner's culvert without charge because that served a private purpose. After reconsidering the road-protection costs and risks, the AG said a county could reasonably decide that installing culverts itself under a uniform policy better protected its road system. The office expressly overruled OAG 93-24 and said the same reasoning allowed state highway officials to install culverts along state highways.

The AG did not say every private driveway project could be funded. Its reasoning focused on preventing defective installations from damaging public roads and on a uniform culvert-installation policy. It read KRS 179.380(1)'s landowner duty as applying when the state or county had not undertaken the work.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

County road departments

The AG said construction standards alone might not fully protect county roads. Inspecting private installations, correcting defective work and repairing road damage could impose costs. On those facts, a county could adopt a uniform policy to perform culvert installation itself as a more effective or economical road-protection measure.

State highway officials

The Secretary of Transportation asked whether the Department of Highways could install and maintain culvert pipes under 603 KAR 1:020. The AG answered yes and extended its county-road reasoning to state highways.

Owners of property adjoining a public road

The opinion did not erase the landowner or tenant duty in KRS 179.380(1) to construct and repair approaches to a public road under the county engineer's direction. The AG read that duty as operating when the government did not perform part of the work to protect the road.

Common questions

Did OAG 93-79 change Kentucky's earlier culvert opinion?

Yes. It expressly overruled OAG 93-24, which had treated a county's no-charge installation of a privately purchased culvert as an improper private-purpose expenditure.

Why did the AG allow a county to install the culvert itself?

The opinion said installation by the county could protect its road investment more effectively or economically than standards alone, given the potential costs of inspections and faulty work.

Could the state highway department also install culverts?

The AG said yes. It reasoned that if counties could install culverts under a uniform policy along county roads, the state could do the same along state highways.

Did the opinion say landowners had no duty to maintain road approaches?

No. It read KRS 179.380(1)'s landowner or tenant duty as applying in the absence of government construction or maintenance of the approach.

Background and statutory framework

The Department of Transportation sought clarification of OAG 93-24 and 603 KAR 1:020. The AG reconsidered whether government culvert installation served only a private benefit, noting the county's interest in preserving road integrity. It read KRS 179.380(1) as compatible with government performance of some installation work and formally overruled the prior opinion.

Citations and references

  • KRS 179.380(1): duty concerning road approaches and driveways, interpreted by the AG.
  • 603 KAR 1:020: state culvert rule named in the request.
  • OAG 93-24: expressly overruled by this opinion.

Source

Original opinion text

OAG 93-79

November 17, 1993

Don C. Kelly

Secretary of Transportation

Frankfort, Kentucky 40601

Dear Mr. Kelly:

You have asked for a clarification of OAG 93-24. Specifically, you ask whether the Department of Highways may install and maintain culvert pipes as provided in 603 KAR 1:020. We conclude that the answer is yes, and we overrule OAG 93-24.

In OAG 93-24, we addressed the question whether a county may install a culvert on private property adjoining a county road. Under the practice that was described to us, the property owner who desired access to the road would pay for the pipe, and the county highway department would install the culvert without charge to the landowner. We said that such a practice is illegal because the installation of the culvert is a private purpose, not a public one, and the county cannot use public funds for a private purpose. We said that the county's interest in preserving the structural integrity of the road could be satisfied by the adoption of an ordinance specifying construction standards that the landowner must meet in installing a culvert.

Upon further reflection, assisted by the receipt of information from various affected parties, we conclude that our view in OAG 93-24 was too restrictive. While the adoption of construction standards would undoubtedly go far in protecting the integrity of roads, it does not follow that such standards alone provide full protection to the county's investment in its road system. If construction standards are adopted, then the county could face the expense of employing an inspector to insure that the culvert installation meets the specifications. If an installation does not meet the construction standards, and the landowner is unable or unwilling to remedy the problem, then the county could face the expense of removing the faulty installation and correcting any damage to the road. Faced with the prospect of these and possibly other expenses, we cannot say that it would be unreasonable for the county to decide that a more economical or more effective alternative is to perform the installation work itself.

KRS 179.380(1) states, “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.” We construe this provision as obligating the landowner or tenant to construct and maintain approaches to public roads in the absence of such construction or maintenance by the state or county. We do not construe this provision as forbidding the state or county to perform a portion of the construction work itself in order to insure that the integrity of the road will not be compromised as a result of improper installation work.

We therefore overrule OAG 93-24.

Since a county may install culverts as part of a uniform policy regarding culvert installation along county roads, it follows that the same is true regarding the state's installation of culverts along state highways.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General

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