Opinion
DATE: October 2, 1979
SUBJECT: DEFINITION OF `RELOCATION' AND `PUBLIC ROADS OF A COUNTY' UNDER SECTION 39-1722, R.R.S. 1943
REQUESTED BY: F. A. Gossett, III, Dodge County Attorney, Courthouse, Fremont, Nebraska, 68025.
1. Does moving a portion of an existing county road 75 feet from the existing right-of-way constitute `relocation' under section 39-1722, R.R.S. 1943?
2. Does the phrase `public roads of a county' as used in section 39-1722, R.R.S. 1943, include township roads or any other existing road categories?
1. Yes.
2. It includes county and township roads and all public streets of unincorporated villages, but not federal or state highways, and not any public road or any part thereof which is within the area of the zoning jurisdiction of a city of the metropolitan, primary or first class without the prior approval of the governing body of such city.
1. The word `relocation' as used in section 39-1722, R.R.S. 1943, is not defined by statute. Neither has the Nebraska Supreme Court directly ruled on an interpretation. However, at least one statute, section 39-1304.02, R.R.S. 1943, more than implies a distinction to be made between the words `alteration, change, moving, or relocation', this in connection with utility facilities along highways. However, the statute does not define the various terms. The Nebraska Supreme Court, in the case of Fougeron v. County of Seward, 174 Neb. 753, 119 N.W.2d 298 (1963), did state, `We think that sections 39-1722 to 39-1727, R.R.S. 1943, were intended to deal with establishment, alterations, and vacation of public roads generally . . .', but again, no explanation was made of the omission of the word `relocation' or the meaning of either `alteration' or `relocation'.
Accordingly, reliance is placed on a definition from another jurisdiction wherein the case of Schneider v. Masheter, 202 N.E.2d 320, 324, 120 Ohio App. 318, is cited in 36A Words and Phrases, 1979 P.P., p. 73, for the proposition that ``Relocation', within statute requiring notice and hearing before filing of highway appropriation resolution in case of relocation, is change of direction with respect to points of compass or removal from existing geographical situation; change of direction or situation may be substantial or slight, but there must be that kind of change'. Under this definition, the movement of your road 75 feet would be slight, but it would still be to a new and different geographical location. Consequently, it would be considered as a `relocation' under section 39-1722, R.R.S. 1943.
2. Under the County Road Act, section 39-1401(2), R.R.S. 1943, states:
"Public roads shall mean all roads within this state which have been laid out in pursuance of any law of this state, and which have not been vacated in pursuance of law, and all roads located and opened by the law of this state, and which have not been vacated and opened by the county board of any county and traveled for more than ten years; . . ."
Section 39-1405, R.R.S. 1943, states in pertinent part:
"All public streets of unincorporated villages are a part of the public roads and shall be worked and maintained by the respective county or township authorities."
Section 39-1402, R.R.S. 1943, states:
"General supervision and control of the public roads of each county is vested in the county board. The board shall have the power and authority of establishment, improvement, maintenance, and abandonment of public roads of the county and of enforcement of the laws in relation thereto as provided by the provisions of this act."
Additionally, section 23-108, R.R.S. 1943, states:
"The county board shall have power to lay out, alter or discontinue any road running through its county, to vacate or discontinue public roads running parallel and adjacent to state or federal highways not more than four hundred yards from said highway, or any part thereof, or any abandoned or unused road or part thereof, and for such purpose may acquire title to lands therein, either by gift, prescription, dedication, the exercise of the right of eminent domain, purchase or lease, and may perform such duties concerning roads as may be prescribed by law; Provided, that the county board shall not vacate or discontinue any public road or any part thereof which is within the area of the zoning jurisdiction of a city of the metropolitan, primary or first class without the prior approval of the governing body of such city."
Although townships in counties adopting township organization have certain powers and duties concerning roads, they do not extend to relocation, vacation or abandonment. However, by statute, sections 39-1725 and 1726, R.R.S. 1943, states `if said road (to be relocated, vacated, or abandoned) lies within a township in a county operating roads as a township basis, the same shall not be vacated or abandoned unless an offer has been made to relinquish to the township. . .'
Similarly, the relocation statute, section 39-1722, R.R.S. 1943, states, in pertinent part:
"Provided, that the county board shall not require relocation, vacation, or abandonment of any public road or any part thereof which is within the area of the zoning jurisdiction of a city of the metropolitan, primary or first class without the prior approval of the governing body of such city."
By separate statute, section 39-1301, R.R.S. 1943, the Nebraska Legislature has designated `the Director-State Engineer and the Department of Roads, acting under his direction, as direct custodian of the state highway system, with full authority in all departmental administrative details, in all matters of engineering design, and in all matters having to do with the construction, maintenance, operation, and protection of the state highway system.'
Under sections 39-1313, et seq., R.R.S. 1943, only the State Department of Roads can abandon or relinquish roads on the state highway system. Federal highways are, of course, a part of this system.