The Honorable Pat Ellis State Representative 402 Poplar Street
Clinton, AR 72031
Dear Representative Ellis:
This is in response to your request for an opinion on whether Van Buren County is obligated to maintain a public road (which is not a county road) because it has been maintained by the county over the past several years.
It is my opinion that the county is not obligated to continue maintaining this road.
Amendment 55 to the Arkansas Constitution gives the county judge power to operate the system of county roads. The responsibility for maintaining "public roadways . . . eligible for the expenditure of county funds" is also given to the county judge in A.C.A.14-14-1102(b)(a)(A)(i).
You indicate that the road has been dedicated to the public use, but that the county has not designated it as a county road. In this regard, it should be noted that A.C.A. 27-66-207 provides: The county judge, in his discretion, may designate as a county road any street or road dedicated to the public as a public thoroughfare, provided that a bill of assurance making the dedication is properly recorded.
Additionally, A.C.A. 27-66-208 provides:
The county judge, in his discretion, may designate as a county road any strip of ground deeded by the owners to the county for a public thoroughfare.
It is clear, in my opinion, from these provisions that the determination of whether to designate a public road as a county road (thus giving rise to some level of responsibility for repair) is generally a matter within the discretion of the county judge. But see Van Buren County Ordinance dated May 10, 1977, a copy of which is enclosed, setting certain requirements for rural roads.
It is also my opinion that the fact that the county has maintained the road in the past does not, as a general matter, give rise to a duty on the part of the county to repair. This was essentially the conclusion of Attorney General Unofficial Opinion No. 84-93, a copy of which is enclosed.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.