COUNTY COMMISSIONERS AUTHORITY TO GRANT COUNTY RIGHT OF WAY Boards of County Commissioners do not have the authority to permit individuals to install private gas lines in the right of way of county roads. The Attorney General has considered your request for an opinion wherein you ask, in effect, the following question: "Does the Board of County Commissioners have the power to grant use of a county roadway for gas line purposes to an individual that would allow him to install a private gas line in the right of way of a county road?" Title 69 O.S. 1401 [69-1401] (1971), provides in part: "(a) Any public utilities, not otherwise authorized to do so, lawfully operating or doing business in the State of Oklahoma shall have the right to use the public roads and highways of this State as hereinafter provided. "(b) The use of the public roads and highways by such public utilities shall be for the purpose of erecting poles and posts, attaching equipment, wires and fixtures thereto and laying pipes and conduits under the surface thereof Such poles, wires, fixtures, pipes and conduits shall be erected, placed, adjusted or laid and maintained only after obtaining the, consent of, and under such rules and regulations as shall be prescribed by, the Commission as to the State Highway System, and the Boards of County Commissioners of the various counties as to roads and highways under their jurisdiction. Provided, that nothing herein shall be construed to grant the right to use the streets or other places of any municipality of this State without the consent of such municipality. Provided, further, that nothing herein shall be construed to limit any rights granted by other provisions of law. Provided, further, that such poles, wires, posts, conduits, and equipment shall be erected, placed, adjusted, laid, constructed and maintained so as not to incommode or endanger the public in the use of its roads and highways." The Legislature clearly intended that Boards of County Commissioners have the authority to permit public utilities to lay gas lines under the surface of county road right of ways; this authority, however, is limited to public utilities and does not give Boards of County Commissioners the authority to permit individuals to install private gas lines in the right of way of county roads. As stated by the court in Allen v. Board of Commissioners of Pittsburg County, 28 Okl. 773,116 P. 175: "It is a settled rule that the grants of powers to boards of county commissioners must be strictly construed, because when acting under special authority they must act strictly on the conditions under which the authority is given; that they can exercise only such powers as are especially granted, or as are incidentally necessary for the purpose of carrying into effect such powers; and where the law prescribes the mode which they must pursue in the exercise of such powers, it, as a rule, excludes all other modes of procedure." Nowhere within the statutes concerning the Boards of County Commissioners does the Legislature grant said Boards the authority to permit individuals to install private gas lines in the right of way of county roads, and, until authorized by the Legislature, the Boards of County Commissioners do not have the power to grant said use. It is, therefore, the opinion of the Attorney General that your question be answered in the negative. Boards of County Commissioners do not have the authority to permit individuals to install private gas lines in the right of way of county roads. (Mike Martin)
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