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State Examiner and Inspector
COUNTY COMMISSIONERS — INSTALLATION OF CULVERT PIPE — BENEFIT TO ABUTTING OWNERS A county is not authorized to furnish and install culverts or bridges for the purpose of making crossings from private properties to the public highway.
However, where the Board of County Commissioners deems it to be beneficial in the construction, maintenance or repair of a county road, said Board may install culvert pipe on the county highway, regardless of whether or not the same would furnish ingress and egress to abutting property owners.
The Attorney General is in receipt of your request for an opinion wherein you ask the following question: "Where County Commissioners deem it to be beneficial to a county road, may said board install culvert pipe on a county highway whether or not same would furnish ingress and egress to abutting property owners?" The authority and duties of County Commissioners with respect to the County Highway System is set forth in 69 O.S. 601 [69-601] (1971), which provides as follows: "The County Highway System shall be composed of all public roads within any county, less any part of any road or roads which may be taken over as a State highway by the Commission.
It shall be the duty of the Board of County Commissioners in each county to construct and maintain as county highways those roads which best serve the most people of the county.
For this purpose the Board of County Commissioners is authorized to use any funds which are in the County Highway Fund, subject to statutory restrictions on the use of any of such funds, together with any money derived from any agreement entered into between the Commission and the Federal Government, any county or any citizen or group of citizens who have made donations for that purpose.
The Boards of County Commissioners of the various counties shall have exclusive jurisdiction over the designation, construction and maintenance and repair of all of the county highways and bridges therein." (Emphasis added.) The County Commissioners, having exclusive jurisdiction to designate, construct, maintain and repair all county highways, are thereby vested with certain discretion.
The general rule of law as set forth in 30 Am.Jur.2d, Highways, Streets, and Bridges, 66, states: "Improvements in a highway or street must be required by public convenience and necessity, and cannot be made solely for the benefit of a private individual or corporation.
The existence of such public necessity and the character and extent of the work to be done are matters resting in the discretion of the public authorities who are invested with jurisdiction in the premises. . . ." The Oklahoma Supreme Court in Lutes v. Thompson, 193 Okl. 331, 143 P.2d 135 (1943) said: "Construction and maintenance of county highways falls within the statutory duties of county commissioners.
In the performance of these duties, with the exception of maintenance in certain instances, the commissioners must exercise considerable official discretion." (Citing Hines v. Carroll, 186 Okl. 555, 99 P.2d 113 1940.) It is well-settled law in this state that County Commissioners are vested with considerable discretion as to when and how county highways are to be constructed, maintained and repaired.
In an opinion to Honorable Robert L. Cooper, County Attorney, Grant County, on April 22, 1941, the Attorney General affirmed two previous Attorney General's opinions which held that the County Commissioners had no duty or authority to build culverts or bridges to serve abutting landowners. The opinion went on to say that a county is not authorized to "furnish and install culverts or bridges, as the situation may require, for making crossings from private properties or to the public highway".
The opinion points out that "if such private owners want culverts or bridges to serve their property it is their duty to build them." That opinion remains the latest statement of the law and is hereby affirmed. The question being considered in this opinion is distinguishable from the question answered in the opinion to Mr. Cooper.
The question here presented involves a determination by the Board of County Commissioners that the installation of culverts would be beneficial in the construction, maintenance or repair of a county road, as opposed to installing culverts solely for the benefit of the abutting landowners. The county road system includes not only the roadbed itself, but also the entire area over which the county has a right-of-way or easement.
When a culvert pipe is installed on a county right-of-way or easement to provide proper maintenance or repair of the county road, the County Commissioners are following the statutory mandate of maintaining said road.
Although the installation of a culvert pipe which provides a property owner with proper access to a county road may, as a collateral consequence, be beneficial to said property owner, such installation would not be prohibited if the Commissioners determine that the installation of such culvert pipe would be beneficial to the construction, maintenance or repair of the county highway.
For example, it is entirely proper for the Board to install culvert pipe to prevent damage to the roadway because of faulty drainage after heavy rains, even though the installation also provides ingress and egress to the abutting property owners.
Since the Board of County Commissioners is given discretionary powers as to what best serves the people of the county, the Board may exercise its discretionary powers as to the installation of culvert pipe on the county right-of-way or easement regardless of whether the same provided the property owner with access to the county road.
Each installation will require a separate determination by the Board of County Commissioners that the installation is beneficial to the construction, maintenance or repair of the county highway. It is, therefore, the opinion of the Attorney General that your question be answered as follows: A county is not authorized to furnish and install culverts or bridges for the purpose of making crossings from private properties to the public highway.
However, where the Board of County Commissioners deems it to be beneficial in the construction, maintenance or repair of a county road, said Board may install culvert pipe on the county highway, regardless of whether or not the same would furnish ingress and egress to abutting property owners. (MARVIN C. EMERSON) (ksg)