THE CITY OF PIONEER VILLAGE V. BULLITT COUNTY, BY AND THROUGH THE BULLITT FISCAL COURT, HON . KENNETH J . RIGDON, JUDGE/EXECUTIVE PRESIDING
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THE CITY OF PIONEER VILLAGE
ON APPEAL FROM THE COURT OF A1 PEALS
2000-CA-1629-MR
BULLITT CIRCUIT COURT NO. 99-CR-00391
V.
BULLITT COUNTY, BY AND THROUGH
THE BULLITT FISCAL COURT,
HON . KENNETH J. RIGDON,
JUDGE/EXECUTIVE PRESIDING
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
This appeal is from a decision of the Court of Appeals which affirmed a
judgment on the pleadings granted by the Bullitt Circuit Court.
The principal question presented is whether a county has the duty, or
even the legal authority, to maintain a county road after that road is included in property
annexed by a city . Conversely, does a city that annexes territory containing a county
road undertake a duty to maintain that road . Other questions include whether the Court
of Appeals properly affirmed the order of the circuit judge granting a judgment on the
pleadings pursuant to CR 12.03; whether provisions of KRS Chapter 178 regarding the
discontinuance of a county road apply in this case; and whether Bullitt County is entitled
to sovereign immunity.
The City of Pioneer Village, a city of the fifth class, was incorporated more
than twenty-five years ago . Shortly thereafter, it annexed unincorporated territory in
Bullitt County . The annexed property included several county roads, including Summitt
Drive. Prior to the annexation, Summit Drive had been accepted as a county road and
it was maintained by the county after annexation as part of the county road system until
this dispute arose in 1998 .
In a letter dated April 22, 1998, the office of the Bullitt County
Judge/Executive notified Pioneer Village that Bullitt County would no longer maintain
Summitt Drive as well as Somerset Drive and Summers Drive in the absence of an
inter-local agreement . The letter stated that the action was taken pursuant to
information received from the Kentucky Department of Transportation which indicated
that continuing to service those roads would not be legal . The letter also advised that
the county would continue to provide maintenance for an additional 60 days in order to
allow Pioneer Village to work out an inter-local agreement with the county if it chose to
do so .
The city and the county were unable to reach an agreement, with Pioneer
Village taking the position that maintenance of the roads was the responsibility of the
county. Summitt Drive, a connector road for Maryville Elementary School which serves
children both within the city and the county at large, began to deteriorate with neither
side making repairs . In early 1999, Bullitt County repaired the road and billed Pioneer
Village for the cost of repairs in the amount of $1,772 .52 . The city paid the bill under
protest and brought this action in the circuit court seeking reimbursement of the bill plus
interest; an order declaring the closing of the road void ; an injunction precluding the
county from expending any funds until the road was repaired and attorneys' fees.
The circuit judge entered a judgment on the pleadings in favor of Bullitt
County . The Court of Appeals affirmed the circuit judge, holding that it is a wellestablished principle that roads annexed into a city become city streets with the duty of
maintenance being imposed on the city. It rejected the contention by the city that the
road was unlawfully discontinued in violation of KRS 178 .070. This Court accepted
discretionary review.
I . Judgment on the Pleadings
Civil Rule 12.03 provides that any party to a lawsuit may move for a
judgment on the pleadings . The purpose of the rule is to expedite the termination of a
controversy where the ultimate and controlling facts are not in dispute . It is designed to
provide a method of disposing of cases where the allegations of the pleadings are
admitted and only a question of law is to be decided . The procedure is not intended to
delay the trial in any respect, but is to be determined before the trial begins. The basis
of the motion is to test the legal sufficiency of a claim or defense in view of all the
adverse pleadings . When a party moves for a judgment on the pleadings, he admits for
the purposes of his motion not only the truth of all his adversary's well-pleaded
allegations of fact and fair inferences therefrom, but also the untruth of all his own
allegations which have been denied by his adversary. Archer v. Citizens Fidelity Bank
& Trust Co. , Ky., 365 S.W .2d 727 (1963) . The judgment should be granted if it appears
beyond doubt that the nonmoving party cannot prove any set of facts that would entitle
him/her to relief. Cf. Spencer v. Woods, Ky., 282 S .W .2d 851 (1955) .
Here, the circuit judge applied the rule set out in Archer, supra and
Sheffer v. Chromalloy Mining & Mineral , Ky .App ., 578 S.W .2d 594 (1979). The circuit
judge considered the written and oral arguments of both parties and examined the law
and found that upon the annexation of the roads in question, the city became
responsible for their maintenance. The facts were not in dispute and the circuit judge
did not commit error in his application of the law to the facts.
II . Roads Not Discontinued
Pioneer Village contends that the actions of the county constitute an
unlawful discontinuance of a county road . We find this argument to be without merit.
The Court of Appeals correctly held that Bullitt County did not discontinue
or close the roads which were annexed by the city. Under the facts here, the provisions
of KRS Chapter 178 regarding the discontinuance of a road do not apply. In a situation
involving annexation, the county is not required to follow the procedures established in
KRS 178 .050 and 178 .070. Those statutes relate to the closing of a county road so as
to make it unusable by the public. The roads in question have not been discontinued
but only their legal character has been changed by the annexation proceeding from
county roads to city roads or streets, and as such they are under the exclusive control
of the city. Consistent with KRS 178 .010(2), the city has the authority to direct the use
of the roads as long as they remain within the city limits .
Ill . KRS 178.010
KRS 178 .010(1)(b), which was amended in 1964, defines a county road
as a public road which has "been accepted by the fiscal court of the county as a part of
the county road system after July 1, 1914, or private roads, streets, or highways, which
have been acquired by the county pursuant to KRS 178.405 to KRS 178.425 . . . ." Prior
to the 1964 amendment, KRS 178 .010 defined county roads as "all public roads outside
the incorporated cities, except primary roads and federal parkways ."
Among the changes in the statute, the city notes that the language
"outside of incorporated cities" was eliminated . Consequently, it argues that after the
1964 amendment, the annexation of a county road by a municipal corporation does not
relieve a county of its responsibility of maintaining that road . It contends that the
amendment renders the case law prior to 1964 obsolete . We disagree . There has
been no significant or fundamental change in the statutory language which aids the
position of the city.
Although it involves a city of the sixth class, we find the opinion of the
Attorney General, OAG 68-506, to be instructive . It was issued in 1968 after the 1964
statutory changes were made amending KRS 178 .010(1)(b) . That opinion determined
that when an area containing a county roadway is annexed by a city, the maintenance
and upkeep of that roadway goes to the annexing city and does not remain with the
county . It cited 62 C.J .S . Municipal Corporations §76 (now §70 (1999)) as follows :
Property annexed to a municipal corporation is subject to
use for streets and alleys. Also, the municipality acquires
streets, alleys, highways, bridges, and other public ways in
the annexed territory, and may regulate and control their use
. . . to the exclusion of the authorities of the political
subdivision formerly exercising control . On the other hand,
the municipality takes such public ways in trust for the
public, subject to established grades and rights reserved by
a dedicator, and there are imposed on it the same municipal
duties and liabilities as to streets, highways, and bridges to
the annexed territory as rest on it with respect to those in the
original territory . . . .
Kentucky law has consistently upheld the position of Buliitt County and we
find no reason to change that position . One of the earliest cases occurred one hundred
years ago in the seminal decision of City of Louisville v. Brewer's Adm'r, 24 Ky . Law
Rep . 1671, 72 S .W . 9 (1903). In that case it was held that a county road in property
annexed by the city of Louisville became a street of the city upon annexation . The
court also held that the city became "chargeable with all the duties with reference
thereto that they owe to any public streets and alleys of the municipality; that formal
recognition of this fact by a resolution of its board of council was wholly unnecessary ."
Id . at 10 .
In City of Oakdale v. Sanders' Ex'x, 155 Ky. 352, 159 S .W . 812 (1913), it
was held that when a city took jurisdiction over territory, it assumed the burdens then
incident to it, among which were the maintenance of public thoroughfares . Later, C
. of Ashland v. Cummings , 194 Ky. 645, 240 S.W. 63 (1922), held that "upon the
annexation of the territory, Church street became a public street of the city without
formal action on its part, with the consequent duty on the part of the city to use ordinary
care to maintain . . . ." Cummings , supra , cited with approval Brewer's Adm'r, supra
and Sanders' Ex'x, supra . For the same proposition, see also, Lewis v. City of
Whitesburq , 253 Ky. 480, 69 S .W .2d 989 (1934); Tolliver v . Louisville & Nashville R.R.
Co . , 226 Ky. 132, 10 S.W.2d 623 (1928) ; City of Louisville v. Flanders , 225 Ky. 41, 7
S.W.2d 514 (1928) . Whitesburq , supra , held that a county road that traversed territory
later annexed by the city became a city street without formal action of the city .
Similarly, in Tolliver, supra , the court stated that when territory becomes a part of the
town, the established highways which the public has acquired the right to use
automatically become highways within the town .
The lengthy arguments and authorities cited by the city, although
scholarly, are unconvincing and provide no legal basis helpful to its position. It is
abundantly clear that the courts of Kentucky have determined on numerous occasions
that a road, county road, public road, or county or public highway are terms that can be
used interchangeably . See Gernert v. City of Louisville, 155 Ky. 589, 159 S.W . 1163
(1913), citing City of Louisville v. Hall , Ky., 91 S .W. 1133 (1906). The principle of law
that arises from all of these authorities is that once a city annexes a road it is the
responsibility of the city to maintain that road .
IV. Sovereign Immunity
The Court of Appeals made no decision regarding the position of the
county that it is immune from a claim for monetary damages in this matter. In view of
our decision, the question of sovereign immunity is moot.
It is the decision of this Court that once county roads are annexed into a
city, they become city streets with the duty of maintenance being imposed on the city.
The rulings of the circuit court and the opinion of the Court of Appeals are affirmed .
All concur.
COUNSEL FOR APPELLANT :
Norman R. Lemme
Lemme & Conway
P .O . Box 770
319 South Buckman Street
Shepherdsville, KY 40165
COUNSEL FOR APPELLEE :
Walter A. Sholar
Bullitt County Attorney
P .O . Box 6539
129 W . 4th Street
Shepherdsville, KY 40165
Michael J. Leibson
P.O. Box 6539
129 W . 4th Street
Shepherdsville, KY 40165
Richard C . Gibson
P .O . Box 6539
129 W. 4th Street
Shepherdsville, KY 40165
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