Opinion No.

The Honorable Larry Mitchell State Representative P.O. Box 81 Bryant, Arkansas 72022-0081

Dear Representative Mitchell:

This is in response to your request for an opinion on the following question:

Hobby Road in Saline County, off Chicot Road, has been used and maintained by Saline County for the past ten years. Does this justify Hobby Road as being a County Road?

It is my opinion that the answer to your question is "no," maintenance alone does not designate a road as a county road.

In Arkansas Game Fish Commission v. Lindsey, 292 Ark. 314,730 S.W.2d 474 (1987), the Arkansas Supreme Court stated as follows:

County roads, as distinguished from public roads by prescriptive right, may be created in either of three ways. First, the landowners can dedicate the right-of-way to the county. See [A.C.A. §§ 27-66-207 and -208]. There was no dedication of either the old or the new rights-of-way in this case. Second, a county may condemn and pay for the right-of-way. See [A.C.A. §§ 14-298-101 to -125]. There was no condemnation action in this case. Third, the County Judge may enter an order, after notice, declaring a mail route or a school bus route a county road. [A.C.A. §§ 27-66-205 and -206]; Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984). No such order was ever entered. . . .

292 Ark. at 321.

The statutes referred to above which allow landowners to dedicate a right-of-way to the county and those which allow the county judge to declare a mail or school bus route a county road, each involve an element of discretion with the county judge. Each of these statutes (A.C.A. §§ 27-66-205; 27-66-206; 27-66-207; and27-66-208) state that "[t]he county judge, in his discretion, may designate . . . a county road. . . ." (Emphasis added." Although the maintenance of a particular road by the county may be a factor the county judge considers in deciding whether to declare a particular school bus route a county road (see Johnsonv. Wylie, supra at 79), past maintenance does not require him to declare the road a county road. This was essentially the conclusion of Op. Att'y Gen. No. 89-135, and Unofficial Op. Att'y Gen. No. 84-93, copies of which are enclosed.

Absent any action of the county judge in this regard, or any condemnation proceedings, it is my opinion that maintenance alone does not create a "county road."

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.

Sincerely,

WINSTON BRYANT Attorney General

ELC/WB:cyh

Enclosures