Opinion No. (1997)

DANIEL E. LUNGREN Attorney General ANTHONY S. Da VIGO Deputy Attorney General THE HONORABLE RICHARD K. RAINEY, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following question: May public funds be used to repair and maintain an unpaved road located on private property if the general public has a "prescriptive use easement" to travel on the road? CONCLUSION Public funds may be used to repair and maintain an unpaved road located on private property if the general public has a "prescriptive use easement" to travel on the road. ANALYSIS We are advised that an unpaved road in Sierra County between Downieville and Johnsville crosses over privately owned property. It is depicted on United States Geological Survey and local maps for the area and has been used for travel by members of the public for the past 100 years. Currently 4-wheel drive vehicles, motorcycles, mountain bikes, and hikers travel the road. May public funds be spent to repair and maintain the road even though it is on private property? We conclude that public funds may be so used. The issue to be resolved is whether the "gift clause" of the Constitution prohibits public funds from being used to…