Opinion No. (1979)

REQUESTED BY: Glenn A. Clark, Dawson County Attorney, Lexington, Nebraska. Does a county have a duty to open and maintain roads within a newly platted subdivision located outside a city, but within the two mile zoning jurisdiction of the city?

No, unless a special road district is properly organized.

The Nebraska Supreme Court has repeatedly stated that ``Counties and county boards can exercise only such powers as are expressly conferred upon them by statute, and such grant of powers must be strictly construed'. Shanahan v.Johnson, 170 Neb. 399.

Statutory authority and duties of the county board as regards roads and streets are found generally in Chapter 39, Articles 14 to 21, and Chapter 23, Articles 1, 3(i), 3(s), and 3(t), R.R.S. 1943.

Sections 23-108, 39-1402 and 39-1701 and 1702 provide the board with general authority, but contain no positive mandates.

Section 39-1410 declares section lines to be public roads to be opened whenever the public good requires.

Section 39-1405 requires the county to work and maintain public streets of unincorporated villages and to remove snow and ice from all public streets of incorporated sanitary and improvement districts. The subdivision described is not considered to be an unincorporated village, as to be such, it would have to be capable of incorporation, and under section 17-201, it could not be so declared. The facts as submitted, do not show the subdivision to be a sanitary and improvement district.

Section 39-1716 requires the county to construct roads to isolated lands, but this condition is not considered to be within the facts of the situation you relate.

No other statute is found which mandates the opening or maintenance of roads and streets by the county within a subdivision as described.

The foregoing is not meant to imply that the county board does not have the power to open and maintain roads and streets when invoked under the proper circumstances. For example, a county can improve streets, if specified statutory requirements are met, both inside and outside of corporate limits, under the provisions of Article 3(i) of Chapter 23. Likewise, the county can perform street work outside corporate limits (but not within one mile of a first class city) under the provisions of Article 3(s) of Chapter 23. Further, a county can construct and improve roads under the provisions of Article 16(c) of Chapter 39. Similarly, a county can maintain roads under the provisions of Articles 16(a), (b), and (c) of Chapter 39. All of these methods involve the creation of street or road districts with varying details and methods of financing.

In conclusion, a county is considered to have no duty to open or maintain subdivision streets outside the limits of a first class city, but within its zoning jurisdiction, but it has the authority to do so, partially or wholly, as the statute may allow, if a proper special road or street district is legally formed. Once formed under Articles 16(a) and (c) of Chapter 39, and construction completed, maintenance becomes the stated responsibility of the county.