Attorney General Opinion No. ( 1993 )

Mr. Darrell E. Miller Jewell County Attorney 208 N. Commercial P.O. Box 344 Mankato, Kansas 66956

Dear Mr. Miller:

As Jewell county attorney, you request our opinion as to who is responsible for replacement of the bridges located in Jewell county. You inform us that a number of bridges across the canal were constructed by the Kansas Bostwick irrigation district in 1970 or 1971. You further state that the county has maintained the bridges in accordance with an agreement with the district.

K.S.A. 42-349 in pertinent part provides:

"It shall be the duty of the proprietors or owners of any canal, ditch or other conduit constructed for the conveyance of water used principally for irrigation purposes to provide and construct all necessary bridges and viaducts for the use of the public in crossing the same. . . .

"All such bridges and viaducts, when constructed shall be and become a part of the public highway, and shall be maintained and kept in repair by the authorities having charge of such highways: Provided, . . ."

K.S.A. 42-350 in pertinent part provides:

"It shall be the duty of any person, firm or corporation who are the owners and proprietors of any canal, ditch or other conduit constructed for the conveyance of water, or other opening through or across a public highway or street, which are used principally for power purposes, to restore such highway to passable condition, and to build, rebuild, maintain and keep in repair at such proprietor's or owner's expense, a good and sufficient bridge or viaduct over and across the same, of the size and kind required by law of the highway authorities in charge of such highway or bridge."

K.S.A. 42-351 in part provides:

"The provisions of this act shall apply to canals, ditches, conduits and other openings through the public highways of the state, which are already built over and across the same, whether built and maintained by the public authorities or the owner and proprietors of such ditches, canals, conduits and other openings, and when it shall become necessary to build, rebuild, repair or maintain bridges and viaducts already existing over canals, ditches, conduits and other openings through a public highway as set out in K.S.A. 42-350, such duty shall devolve upon the owner and proprietor thereof without regard to who has performed such duty heretofore: Provided, that in case said bridges or viaducts become in a dangerous condition for travel and the owner or proprietor of said canal, ditch or conduit shall fail or refuse to repair or reconstruct said bridge or viaduct the highway officials having jurisdiction over said bridge or viaduct may repair or reconstruct the same and certify the cost to the county clerk who shall enter the same against the property of said owner or proprietor on the tax rolls for collection the same as other taxes."

According to the facts provided in your letter of inquiry, the bridges in question were constructed with untreated wood and can no longer be repaired. Nine of those bridges have been condemned for any travel and need to be completely replaced. You also inform us that Jewell county has maintained the bridges based on the agreement with the irrigation district.

The statutes impose a duty to construct, to build, rebuild, maintain and keep in repair on the owners and proprietors of canals. K.S.A. 42-351 makes it clear that it is irrelevant who has maintained the bridges. Therefore, the critical issue is who is the owner and proprietor of the canal. We are not provided with information as to who is the owner and proprietor of the canal on which the bridges were constructed. The agreement between the county and the district may have provisions concerning the ownership and proprietorship of the canal.

We conclude that whoever owns the canal over which the bridges should be rebuilt must rebuild the bridges.

Very truly yours,

ROBERT T. STEPHAN Attorney General of Kansas

Nobuko K. Folmsbee Assistant Attorney General

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