¶0 The Attorney General has received your request for an official opinion, wherein you ask the following questions:
"1. Is it necessary for a road to be on the official ODOT map before the county can maintain it? Is it necessary for a road to have been accepted by the county's County Board of Commissioners as a county road before the county can maintain it?
"2. Is it legal for the county to work on a 'private road' that is built by a private developer which is not on the county road system, but which is nevertheless open to and freely used by the public? ( See 68 O.S. 504(d)(2) (1981) and 69 O.S. 222 (1982) )
"3. If a 'private road' is listed as part of an officially designated and mapped school bus route or an official mail route, is it legal for the county to maintain it, even though it is not on a designated county road? ( See 68 O.S. 504.1(3) (1981) )
"4. If the land on which a 'private road' right of way is located was deeded to the county when it was built and the county has in the past taken some care of it, is it legal for the county to work on such road even though no record can be found that it was ever accepted to the Board? ( See 47 O.S. 1-148 (1981). 68 O.S. 501(M) (1981) )
"5. Assume the same situation as above, but an easement was given instead of a land dedication.
"6. If a 'private road' (which meets the above definition of 'public road') has been maintained on a minimal basis (graded occasionally) for more than 15 years, does this constitute a passive acceptance of it by the county?"

¶1 The first question inquires whether a road must be shown on the "official ODOT map" in order for a county to maintain it, and whether a road must have been "accepted" by a board of county commissioners as a prerequisite to county maintenance. The reference to "official ODOT map" apparently alludes to either 69 O.S. 317, 69 O.S. 501(d) or 69 O.S. 654 (1981). 69 O.S. 317 permits the Department of Transportation, inter alia, to provide maps to counties "necessary" for "planning, supervising, locating, improving, and constructing roads . . . in any part, section or area of Oklahoma." 69 O.S. 501(d) requires the State Transportation Commission to keep and maintain a map of the State Highway System. 69 O.S. 654 requires boards of county commissioners to prepare, maintain and file with the State Transportation Commission and the County Commissioners' Association maps of a "county primary road system" in each county. This latter map is referred to by the statute as a "classification map". There is no requirement in the statutes that inclusion on any of these maps is a prerequisite to routine road maintenance by county officials.

¶2 The second part of the first question is whether the board of county commissioners must "accept" a road in order to maintain it. The board of county commissioners has the duty to "maintain as county highways those roads which best serve the most people of the county . " 69 O.S. 601(A) (1981). The jurisdiction of the board of county commissioners over the maintenance and repair of such roads is exclusive. Id.; Terry v. Edgin, Okl., 598 P.2d 228, 235 (1979). County roads can be established by prescription, i.e., open and notorious adverse use of a road by the public for a sufficient time to toll the statute of limitations on an action for the recovery of real property. Liggett v. Peck, 197 Okl. 74, 168 P.2d 622 (1946). County roads may be established pursuant to resolution of the board of county commissioners opening a section line in accordance with the procedure set forth in 19 O.S. 1981, 339; Salyer v. Jackson, 105 Okl. 212,232 P.412 (1924). See also 69 O.S. 1981, 622. Moreover, the county may obtain a public highway where there has been a dedication of streets or roads on a plat and general scheme of development, including the sale of lots taking place with reference to such plat. Kennedy v. Hawkins, Okl., 346 P.2d 342 (1959); Williamson v. Needles, 191 Okl. 560, 133 P.2d 211 (1942). It is not necessary for the county to "accept" such dedication. Id. This is known as a common law dedication. Id. Therefore, county roads may be established in a variety of ways. "Acceptance" of the road by the county is not necessary for a highway by prescription or a common law dedication, and "acceptance" is inherent in the act of opening a section line through statutory procedures.

¶3 Title 69 O.S. 601.1 (1981) provides for what amounts to an exception to the common law dedication rule. That statute permits a county to promulgate standard plans and specifications to govern the "establishment and construction of new roads or bridges to be dedicated to the use and benefit of the public." The last sentence of 69 O.S. 601.1 provides:

¶4 Where a county has prepared and adopted such standard plans and specifications, a dedication of a new county road cannot become final until it is determined that such road meets the county's standard plans and specifications. Whether 69 O.S. 601.1 applies, however, is a question of fact dependent upon whether a county has in fact promulgated standard plans and specifications and whether the particular road or roads meet the requirements of such plans and specifications. In counties which have not adopted standard plans and specifications in accordance with 69 O.S. 601.1, the law of common law dedication will govern unaffected by 69 O.S. 601.1.

¶5 The second question is whether it is "legal" for a county to work on a "private road" built by a "private developer", which is not on the county road system but which is nevertheless open to and freely used by the public. By "private road", the letter requesting this opinion refers to a "road not shown on the Oklahoma Department of Transportation General Highway Map of Cleveland County." The answer to the first question demonstrated that noninclusion of a road on such a map was immaterial to whether the county could maintain the road. The question further premises that the road is not on the county highway system. Such a premise cannot be indulged, because 69 O.S. 601(A) (1981), provides in pertinent part:

¶6 All "public roads" in the county, less those within a municipality or those on the State Highway System, are by operation of law on the county highway system. Roads within the corporate limits of municipalities are under the maintenance jurisdiction of the municipality, subject to certain nonrelevant exceptions. Terry v. Edgin, supra. The criteria, therefore, are whether the road is "public" and not within a municipality and not on the State Highway System. If these criteria are met, the road is on the county highway system. Whether a road is a "public highway" depends upon whether it is open to the public for purposes of travel. St. Louis & S. F. Ry. Co. v. Smith, 41 Okl 163,137 P. 714 (1913). Whether a road has been taken onto the State Highway System depends upon whether the State Transportation Commission has officially added the road to said system, pursuant to 69 O.S. 501(a) (1981). A road can be built by a private developer and can become a public road by user with title vesting in the county by prescription or common law dedication and thus become part of the county highway system maintainable by the county under 69 O.S. 601(A) (1981). However, the presence of numerous fact questions in such an analysis prevents addressing your specific question as a matter of law.

¶7 The third question must be answered much the same way as the second. Here, the inquiry is whether a road which has been listed as a school bus route or an official mail route may be maintained by the county, even though it is not a "designated county road" and does not appear on the official county highway map maintained by the Oklahoma Department of Transportation. Again, it is immaterial that the road may not appear on this map. It may nevertheless be part of the county highway system. Moreover, there is no requirement that a particular road be "designated" as part of the county highway system. Roads become part of the county highway system by operation of law. As a matter of course, if a road is listed as a school bus route or a mail route, that fact alone would be one of many which would have to be considered in determining whether the road is a "public" road, i.e., open to travel by the public, or purely a private road. The legality of a county maintaining such a road turns on whether it is a public road which by operation of law has become part of the county highway system, which is a fact question.

¶8 The fourth question asks whether a road not shown on the official map, which was "deeded to the county when it was built," and which the county has maintained in the past, may continue to be maintained by the county although no record can be found that the road was ever "accepted" by the board. Initially, depending on the facts, such a road might have become part of the county highway system by prescription. See authorities discussed, supra, Paragraph I. Moreover, such a road may have become a "county road" by common law dedication, in which case, no acceptance by the county is necessary. Williamson v. Needles, supra. Finally, if the road were conveyed by deed to the county, the fact that no record can be found of the deed does not negate other proof that such a deed may have existed and have been delivered. Delivery of a deed is determined from the words and acts of parties in connection with attending circumstances. McClintock v. Ellis 87 Okl. 75, 209 P. 403 (1922). The mere recording of a deed is not necessary to its validity nor does recordation affect the transition of title. Wilber State Bank v. State, ex rel. Stanfield, 183 Okl. 565,83 P.2d 805 (1938). Therefore, whether a road can legally be maintained by a county where there has been a transfer by "deed" of which no record can be found, is a question of fact.

¶9 The fifth question asks whether the county can continue to maintain a road which was deeded to the county, such deed conveying an "ease ment", but no record can be found of the deed. Again, for the same reasons set forth in Paragraph IV, this is a fact question.

¶10 The sixth question is whether a road which does not appear on the official map is passively accepted by the county where it has been maintained "on a minimal basis (graded occasionally) for more than 15 years." Such facts indeed may be relevant to whether a highway by prescription has been established, which would entitle the county to maintain it. Salyer v. Jackson, supra. However, a highway by prescription is established by operation of law. "Passive acceptance" by the county is not an issue. This question is also a fact question and cannot be answered as a matter of law.

¶11 The final question is whether it is legal for a County Commissioner to ask for a bond issue to replace or repair bridges that are considered county bridges but are within the corporate limits of the city. However, because it is not clear as to whom the individual county commissioner is going to ask to issue the bonds or the circumstances under which the county commissioner would ask for the bonds to be issued, this question cannot be answered as a matter of law. It is a fact question.

JAN ERIC CARTWRIGHT
ATTORNEY GENERAL OF OKLAHOMA
FLOYD W. TAYLOR
FIRST ASSISTANT ATTORNEY GENERAL