How does a New York village formally transfer a village road to the county for maintenance, and what is the maintenance responsibility after that transfer?

Plain-English summary

Schenectady County's board of supervisors approved a county highway map by resolution. The map included two improved highways within the Village of Delanson, which had previously been under village jurisdiction. The map was then filed with the county clerk and the county highway superintendent. The county attorney asked the AG: did this procedure transfer control and supervision of the two roads to the county under Highway Law § 115, and was the county now responsible for maintaining them?

The AG said yes to both.

Village Law § 6-602 puts village streets and public grounds under the exclusive control of the village board of trustees as a separate highway district. Highway Law § 115 lets a county superintendent of highways prepare a map of a proposed county road system; once the map is approved by the county board of supervisors and filed with the county clerk and the county highway superintendent, the roads on the map become part of the county system, eligible for state and county funding, and subject to county maintenance authority under Highway Law § 114.

The AG concluded that the two roads in Delanson ceased being under exclusive village control when the map became effective. Roads on which the county may spend money for maintenance and reconstruction cannot simultaneously be under the village's exclusive control. The 1986 AG opinion (Op. No. 86-69) had already held that a county may maintain portions of county roads located within an incorporated village, with the "determinative factor" being whether the highway is part of the county road system.

A doctrinal wrinkle came from the case law saying the State Legislature has "absolute control" over the State's roads (People v. Kerr, Potter v. Collis). The AG saw no conflict. The Legislature's enactment of Highway Law § 115 is itself an exercise of that absolute legislative control. The statute does not change the public use of a road or alter the public's interest in it; it merely allocates supervision between two coequal municipalities, both of which hold the road in trust for the people of the state.

On the related title question, the AG said no title transfer occurs or is needed. The 1991 AG opinion (Op. No. 91-2) was the controlling authority, and it had expressly repudiated a 1972 AG opinion to the extent that opinion implied a title transfer was required. The Comptroller's opinion (24 Op. St. Compt. 391, No. 68-376) that a village could not convey a street to a town for maintenance also did not change the result, because that opinion turned on lack of statutory authority for the conveyance, whereas Highway Law § 115 expressly authorizes inclusion on the county map.

Currency note

This opinion was issued in 2003. 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.

Common questions

Q: What exactly does Highway Law § 115 require?
A: The county superintendent of highways prepares a map of the proposed county road system. The map must be approved by the county board of supervisors. After approval, the map is filed in the office of the county clerk and the county highway superintendent. Roads on the filed map become part of the county road system.

Q: When does the transfer take effect?
A: When the map is filed after approval. From that point, the roads on the map are county roads, eligible for county and state funding (Highway Law § 114) and subject to county maintenance.

Q: Does the village have to consent?
A: The opinion does not say the village's consent is required by § 115. The statute speaks of the county's procedure, not village ratification. In practice, intergovernmental coordination is common but is not, by the text of § 115, a precondition.

Q: Was there really no title transfer?
A: The AG cited the 1991 AG opinion (Op. No. 91-2) for the proposition that no title transfer occurs when a municipal road becomes part of a county road system. The Comptroller's contrary 1968 opinion turned on different statutory authority. The 1972 AG opinion that relied on a title transfer was expressly repudiated.

Q: How does this fit with the "Legislature has absolute control over the streets" line of cases?
A: The AG read the absolute-control doctrine as confirming, not contradicting, Highway Law § 115. The Legislature has used its absolute control to authorize counties to assume jurisdiction over roads they want to maintain. Roads remain held in trust for the public of the state regardless of which level of government supervises them.

Q: What if the county later wants to give the road back?
A: That is governed by Highway Law § 115-a, the abandonment-of-county-road procedure. The Lansing v. Pyramid Cos. case followed § 115-a in exactly that scenario; after the county properly abandoned the road, the village was charged with exclusive control again.

Background and statutory framework

New York's road jurisdiction is layered. Village Law § 6-602 (formerly Village Law § 141 until 1972) puts village streets under village control. Town highways are governed by Highway Law article 9. County roads are governed by Highway Law article 5, which includes §§ 114 (county road maintenance funding) and 115 (county road system maps).

Highway Law § 115 is the mechanism by which a county can take in town or village roads. The procedure is simple but specific: prepare a map, get supervisor approval, file with the right officials. Once filed, the roads on the map are county roads.

Highway Law § 115-a is the corollary, governing how a county can abandon a road back to lower jurisdiction. Lansing v. Pyramid Cos. shows the process in action: county followed § 115-a, village reclaimed control.

The case law on the State Legislature's "absolute control" of streets is doctrinally important but operationally compatible with § 115. The point of People v. Kerr and Potter v. Collis is that municipalities hold streets in trust for the whole state, not as private owners. The Legislature can reallocate that trust between municipalities, and § 115 is one of the mechanisms it has chosen.

Citations and references

Statutes:

• Highway Law § 114 (county road funding and maintenance)
• Highway Law § 115 (county road system map procedure)
• Highway Law § 115-a (abandonment of county road)
• Village Law § 6-602 (village streets under village board control)

Cases:

• New York State Pub. Employees Fed'n v. City of Albany, 72 N.Y.2d 96 (1988) (street held in trust for public)
• People v. Kerr, 27 N.Y. 188 (1863) (Legislature's absolute control over streets)
• McCutcheon v. Terminal Station Comm'n, 168 A.D. 301 (4th Dep't 1915), aff'd 217 N.Y. 127 (1916) (street as public trust)
• People ex rel. Van Norder v. Sewer, Water, & Street Comm'n of Village of Saratoga Springs, 90 App. Div. 555 (3d Dep't 1904) (legislative power over streets)
• Adamson v. Nassau Elec. R. Co., 89 Hun 261, 34 N.Y.S. 1073 (1895) (same)
• Potter v. Collis, 19 A.D. 392 (1st Dep't 1897), aff'd 156 N.Y. 16 (1898) (absolute legislative power)
• Board of Trustees of the Village of Lansing v. Pyramid Cos., 51 A.D.2d 414 (3d Dep't 1976) (county abandonment under § 115-a; village reclaims control)

Prior AG and Comptroller opinions:

• Op. Atty. Gen. (Inf.) No. 86-69 (county maintenance of portions of county roads within villages)
• Op. Atty. Gen. (Inf.) No. 91-2 (no title transfer when road becomes part of county system; repudiates 1972 opinion)
• 1972 Op. Atty. Gen. (Inf.) 137 (expressly repudiated to the extent it required title transfer)
• 24 Op. St. Compt. 391, No. 68-376 (1968) (village cannot convey street to town in absence of statutory authority)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-2_pw.pdf

Original opinion text

HIGHWAY LAW §§ 114, 115, 115-a; VILLAGE LAW § 6-602.

The proper method of transferring control and supervision of a village road to the county within which the village is located is by adding the village road to the county road system map pursuant to Highway Law § 115. Upon such transfer, the county is responsible for maintaining the road.

February 18, 2003

J. Douglas McManus, Jr.
County Attorney
County of Schenectady
County Office Building
620 State Street
Schenectady, NY 12305-2114

Informal Opinion
No. 2003-2

Dear Mr. McManus:

This is in response to a request from Paul H. Tocker of your office for an Attorney General's opinion as to whether the procedures set forth in Highway Law § 115 constitute a proper method of transferring title, supervision, and control of village roads to the county and whether, after adding village roads to a county road system map, the county is then responsible for maintaining the roads. We conclude that Highway Law § 115 sets forth the proper procedure for transfer of supervision and control of roads and that after such transfer, the county is responsible for maintaining the roads.

The statutory framework for this request is Village Law § 6-602 (formerly Village Law § 141, repealed and reenacted as § 6-602 in 1972) and Highway Law § 115. Pursuant to Village Law § 6-602, the streets and public grounds of a village constitute a separate highway district and are under the exclusive control and supervision of the board of trustees. Highway Law § 115 describes the procedure to be followed for a highway to be made a part of a county road system. Pursuant to this section, the county superintendent of highways is to prepare a map of the proposed county road system. The map must then be approved by the county board of supervisors before it becomes effective. Id. After approval, the map must be filed in the office of the county clerk and the county highway superintendent. Id. Each road depicted on the county road map is then a part of the county road system and may be constructed and maintained with state and county funds designated for county roads. Highway Law §§ 114, 115.

As stated in your letter, two roads were improved highways within the village of Delanson under the jurisdiction of the village board of trustees at the time the Schenectady County Board of Supervisors approved by resolution the Schenectady County highway map. The highway map included these two roads. The map was then filed in the office of the county clerk and county superintendent of highways, and the two roads became part of the Schenectady County highway system, pursuant to Highway Law § 115.

We believe that, pursuant to Highway Law § 115, the transfer of control and supervision of the two roads from the village of Delanson to Schenectady County occurred at the time the county road map was approved by resolution of the Schenectady County Board of Supervisors and was filed with the county highway superintendent and the county clerk. Before the county road map took effect, the two roads were village roads, under the exclusive control and supervision of the village board of trustees. Village Law § 6-602. When the county road map became effective, the two roads became subject to maintenance and reconstruction using county road fund moneys. Highway Law § 115. Clearly, roads on which a county may spend money to maintain and reconstruct cannot be under the exclusive control and supervision of the board of trustees of the village through which the road runs. This office has previously found that a county has the authority to maintain those portions of county roads that lie within an incorporated village within the county. Op. Atty. Gen. (Inf.) No. 86-69 ("The fact that a portion of a county road may lie within an incorporated village . . . has no bearing on whether it must be maintained by the county superintendent of highways. The determinative factor is whether the highway is part of the county road system . . . ."). Cf. Board of Trustees of the Village of Lansing v. Pyramid Cos., 51 A.D.2d 414 (3d Dept. 1976) (county followed procedure for abandoning road pursuant to Highway Law § 115-a; village then charged with exclusive control and supervision of road).

The line of case law identified in your letter, stating the principle that the State Legislature has absolute control of and power over the streets, does not necessitate a different response. Instead, we believe that the authorization granted by the Legislature in Highway Law § 115 for a county to bring roads under the county's control and supervision by including them on the county road map is consistent with this principle. The interest a municipality, including a county or a village, has in a road is not a private interest but instead is held in trust for the public for public use; it is held not just for the public comprised of the municipality through which the road runs, but for the people of the whole state of New York. See New York State Pub. Employees Fed'n v. City of Albany, 72 N.Y.2d 96, 101 (1988); People v. Kerr, 27 N.Y. 188, 198-99 (1863); McCutcheon v. Terminal Station Comm'n, 168 A.D. 301, 310 (4th Dept. 1915), aff'd, 217 N.Y. 127 (1916). Consequently, the absolute control of the State's roads and the direction as to their use resides with the State Legislature. People v. Kerr, 27 N.Y. 188, 199 (1863); People ex rel. Van Norder v. Sewer, Water, & Street Comm'n of Village of Saratoga Springs, 90 App. Div. 555, 557 (3d Dept. 1904); Adamson v. Nassau Elec. R. Co., 89 Hun 261, 34 N.Y.S. 1073 (1895). Stated somewhat differently, "[S]o far as the public interests in the streets . . . are effected [sic], the power of the Legislature over them is absolute . . . ." Potter v. Collis, 19 A.D. 392, 396 (1st Dept. 1897), aff'd, 156 N.Y. 16 (1898).

We are of the opinion that the transfer of control and supervision conducted pursuant to Highway Law § 115 cannot reasonably be said to constitute a change in the use of, or to alter the public interests in, the roads. Rather, the transfer is one already authorized by the Legislature via its enactment of Highway Law § 115. Thus, Highway Law § 115 does not override or supersede the common law principle that the State Legislature has absolute control over the highways of the State. The statute and the principle may be applied consistently.

The opinion of the State Comptroller that you cited in your letter, in which the Comptroller determined that a village may not convey a street to a town for maintenance as a town highway (24 Op. St. Compt. 391, No. 68-376 (1968)) does not alter our opinion. While the Comptroller's response in that inquiry indicates that no statutory authority for such a conveyance existed, in the instant situation the county has such authority to include the village road on its map. Highway Law § 115; see also Op. Atty. Gen. (Inf.) No. 91-2.

Your letter raised the question of transfer of title as well as transfer of control and supervision. We have previously determined that a transfer of title neither occurs nor is necessary when a municipal road becomes part of a county road system pursuant to Highway Law § 115. Op. Atty. Gen. (Inf.) No. 91-2. Please note that, to the extent 1972 Opinion of the Attorney General (Inf.) 137, cited in your letter, relied upon a transfer of title, it was expressly repudiated by Opinion of the Attorney General (Inf.) No. 91-2.

In summary, we believe that the proper method of transferring control and supervision of a village road to the county within which the village is located is by adding the village road to the county road system map pursuant to Highway Law § 115. Upon such transfer, the county is responsible for maintaining the road. Op. Atty. Gen. (Inf.) No. 86-69.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions