Attorney General Opinion No. ( 1994 )

Walter R. Lenkner, Trustee Medicine Lodge Township Board P.O. Box 105 Medicine Lodge, Kansas 67104

Dear Mr. Lenkner:

On behalf of the Medicine Lodge township board, you pose two questions concerning roads within a non-county unit road system. You first ask whether the county commission has authority "to declare an open range road." You also ask whether the county commission has authority to close a township road. In addition you request guidance concerning the appropriate amount of compensation for serving as township officials.

It may be helpful to place your questions within the context of the general statutory framework concerning the relation between a county and townships within that county. For this we quote from Attorney General Opinion No. 82-228:

"In Kansas, public roads may be established by purchase, condemnation or dedication. Kratina v. Board of Commissioners, 219 Kan. 499, 502 (1976). The authority of a governmental body to establish public roads and the nature of the government's resulting interest in such roads is governed by statute. See, e.g., State, ex rel., Mitchell v. State Highway Commission, 163 Kan. 187, 196 (1947). Reading together the various provisions of Chapter 68, Kansas Statutes Annotated, it appears that only the board of county commissioners has authority to establish roads in the county. Additionally, K.S.A. 19-212, Ninth, empowers county commissioners to `lay out, alter or discontinue any road running through one or more townships.' Under K.S.A. 68-106, the board is to determine whether to establish a road and to condemn such land as is needed. If the board establishes a road, the township board thereafter has the duty to open and maintain it and to construct such drains and ditches as are necessary for its safety under K.S.A. 68-115, in compliance with specifications and regulations prepared by the county engineer. K.S.A. 68-526, 68-502(4).

"Townships are granted general authority over all township roads in counties not adopting the county road unity system, as in the present case, under K.S.A. 68-526. The township board is to have charge and supervision overall township roads, and is authorized to levy taxes for road purposes under K.S.A 68-518c, and is also responsible for opening and maintaining township roads under K.S.A. 68-115. . . ."

Within this context, K.S.A. 68-128a(a) specifically addresses your first question concerning an "open range road":

"Whenever by license or custom the public is permitted to travel through any pasture lands enclosed by fences, and the owner or owners of such land shall give their consent in writing to the designation and laying out of a road across such lands, the board of county commissioners may designate such road as a public highway. After such road has been regularly designated or laid out as a public road it shall be improved and maintained in the manner and by use of the funds now provided for improving and maintaining other public roads, and the municipality charged with the improvement and maintenance of such road may construct convenient auto gates or automobile passes, or both, and pay the cost of maintenance thereof out of road maintenance funds of such municipality." (Emphasis added.)

That statute when read with K.S.A. 68-124 clearly gives the county commission authority to designate an "open range road" and places responsibility for opening, maintenance and repair of the road on the township if the road is a township road.

Turning now to your second question, K.S.A. 68-102 gives the county commission the authority to vacate any road when petitioned by "at least twelve (12) householders of the county residing in the vicintiy where said road is to be . . . vacated." In counties which have a population between 1,200 and 90,000 an alternative procedure to vacate a road is available to county commissioners. In those counties, the commissioners may vacate a road in the absence of a petition if through neglect, nonuse or inconvenience the road has become practically impassable and the necessity for the road does not justify the expenditure of public funds.See K.S.A. 68-102 through K.S.A. 68-106 for the full procedure for vacating roads.

Regarding the question of appropriate compensation of township officials, we direct your attention to the enclosed 1985 letter to Representative Nancy Brown. As indicated, there are at least a dozen statutes which concern compensation for different types of townships and different duties of township officials. Accordingly while we are unable to give a precise answer, we hope this letter provides guidance for you.

In conclusion, a county commission has the authority to designate an "open range road." Subsequently a township is responsible for the maintenance and repair of the road if the road is a township road. A county commission has the authority to vacate a road. Compensation for township officials varies with the township and duties of the officials.

Very truly yours,

ROBERT T. STEPHAN Attorney General of Kansas

Camille Nohe Assistant Attorney General

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Enclosure