OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA Opinion No. CV 78 43 61 Op. Atty Gen. Cal. 466 November 3, 1978 SYLLABUS: [*1] COUNTY RESPONSIBILITY FOR PUBLIC ROADS A county may accept an offer of dedication of roads for public use without accepting the responsibility of maintenance if the acceptance precedes the roads becoming part of a county highway system, and, while approving subdivision, may accept dedication of roads, requiring that the association of subdivision parcel owners maintain the roads if the acceptance is made before the roads become part of the county highway system. A non exclusive easement for road and utility purposes obtained by a private individual and appurtenant to his land may not be dedicated to a county for public use if the original grant of the easement did not consider public use. However, under the same conditions, a non exclusive easement for road and utility purposes may be dedicated to a county for public use if the original grant of the easement was for "public road and utility purposes" or for "public and private purposes." OPINION BY: EVELLE J. YOUNGER, Attorney General (Rodney Lilyquist, Jr., Deputy) OPINION: Requested by: COUNTY COUNSEL, PLACER COUNTY The Honorable L. J. DeWald, County Counsel of the County of Placer, has requested an opinion on the following questions: 1. May [*2] a county accept an offer of dedication of roads for public use without accepting the responsibility of their maintenance? 2. In the process of subdivision approval, may a county accept an offer of dedication of roads and require that the roads be maintained by the association of the subdivision parcel owners? 3. May a non exclusive easement for road and utility purposes obtained by a private individual and appurtenant to his land be dedicated to a county for public use if the original grant of the easement was not expressly for public use? 4. May a non exclusive easement for road and utility purposes obtained by a private individual and appurtenant to his land be dedicated to a county for public use if the original grant of the easement was for "public road and utility purposes" or for "public and private purposes"? The conclusions are:
1. A county may accept an offer of dedication of roads for public use without accepting the responsibility of their maintenance prior to the roads becoming part of the county highway system. 2. In the process of subdivision approval, a county may accept an offer of dedication of roads and require that the roads be maintained by the association [*3] of subdivision parcel owners prior to the roads becoming part of the county highway system. 3. A non exclusive easement for road and utility purposes obtained by a private individual and appurtenant to his land may not be dedicated to a county for public use if the original grant of the easement did not contemplate public use. 4. A non exclusive easement for road and utility purposes obtained by a private individual and appurtenant to his land may be dedicated to a county for public use if the original grant of the easement was for "public road and utility purposes" or for "public and private purposes." ANALYSIS The Subdivision Map Act (Gov. Code, @@ 66410 66499.37) (hereinafter referred to as the Act) is a part of the enabling statutory scheme for local supervision of subdivision developments. In general terms, it requires a land subdivider to file, to get approval of, and to record a subdivision map with the local governing body; anyone who offers to sell or lease any part of a subdivision without complying with the Act is subject to criminal sanctions. (Bright v. Board of Supervisors (1977) 6 Cal. App. 3d 191, 193 194; 61 Ops. Cal. Atty. Gen. 114, 115 (1978); [*4] Comment, Review of Selected 1974 California California Legislation (1975) 6 Pacific L.J. 125, 357 360; Comment, Forced Dedication as a Condition to Subdivision Approval (1971) 9 San Diego L.Rev. 112, 112.) With certain exceptions, the specific requirements of the Act placed upon a subdivider are: (1) to design the subdivision in conformity with the local general or specific plans, (2) to construct public purpose improvements such as streets and sewers, and (3) to donate land or money for public facilities such as schools and parks. (Gov. Code, @@ 66439, 66474 66479; 3 Witkin, Summary of Cal. Law (8th ed. 1973), Real Property, @@ 22 24, pp. 1788 1792; 2 Orden's Revised Cal. Real Property Law (1975) @@ 25.1 25.2, pp. 1204 1206; Comment, Land Development and the Environment: The Subdivision Map Act (1974) 5 Pacific L.J. 55, 86 87.) The four questions presented for analysis concern proposed subdivisions in a rural county in which the units of land are to be divided into large parcel sizes of three acres or more. Constructing roads that meet county highway standards in such low density subdivisions is relatively expensive and not as necessary as in subdivisions with smaller [*5] parcel sizes. Roads that do not meet county highway standards, however, require greater maintenance. While the county might allow roads of lesser construction standards in such subdivisions, it would prefer that maintenance of the roads not be the responsibility of the county but that the roads be subject to public use rather than private control. The formation of a special road maintenance district (Sts. & Hy. Code, @ 1550.1) is considered too expensive an alternative by the county in some situations. The first two questions involve the issue of whether the county or private individuals may be required to maintain roads dedicated for public use, while the last two questions involve the types of roads and utility easements that may be accepted for subdivision approval.
A "dedication" is the application of private real property to a public use. (3 Miller & Starr, Current Law of Cal. Real Estate (1977) @ 20.1, p. 454; 10 Hagman & Maxwell, Cal. Real Estate Practice (1978) @ 361.01, p. 361:4; 1 Ogden, supra, @ 4.10, p. 125; 3 Witkin, supra, @ 70, p. 1827.) A dedication may be accomplished by statutory means (generally, complying with the provisions of the Act) or by nonstatutory, [*6] common law methods. (People v. Rio Nido Co. (1938) 29 Cal. App. 2d 486, 492; 3 Miller, supra, @ 20.01, pp. 454 455; 10 Higman, supra, @ 361.01(2), p. 361:6; 1 Ogden, supra, @ 4.10, pp. 125 128.) Both an offer and an acceptance are required to effectuate a dedication; the offer may be accepted by a formal resolution of the governing body that has jurisdiction over the property or by informal public use or other governmental action. (3 Miller, supra, @ 20.17, pp. 480 481; 10 Hagman, supra, @ 361.13(1)(4), pp. 361:36 41.) The significance of accepting an offer of dedication is that the property is thereafter held in trust for public use; the property is no longer subject to private control. (10 Hagman, supra, @ 361.01(3), p. 361:6.) It does not follow, however, that property open to public use must be maintained by the governing body that accepted the offer of dedication. Although a road is a "public street" and subject to "public control," it need not necessarily be maintained by the local governing entity. All roads over which the public has a right to travel, whether express or prescriptive, are "public" roads. "Public" roads, however, are [*7] not "county" roads until accepted as such by appropriate resolution of the board of supervisors. (Sts. & Hy. Code, @ 941; 45 Ops. Cal. Atty. Gen. 98, 100 (1965).) The general rule is that a county may not use county road funds for maintaining "public" roads other than "county" roads. (45 Ops. Cal. Atty. Gen. supra, 98, 100; 7 Ops. Cal. Atty. Gen. 174, 177 (1946); 4 Ops. Cal. Atty. Gen. 112, 113 114 (1944).) Accordingly, a county has no statutory duty to maintain public roads that have not been accepted into the county highway system by resolution of the board of supervisors. (County of Kern v. Edgemont Dev. Corp. (1963) 222 Cal. App. 2d 874, 878 879.) The distinction between "public" roads and "county" roads is made exceedingly clear by Streets and Highways Code section 941, the second paragraph of which states: "No public... road shall become a county highway until and unless the board of supervisors, by appropriate resolution, has caused said road to be accepted into the county road system; nor shall any county be held liable for failure to maintain any road unless and until it has been accepted into the county road system by resolution of the board of supervisors." [*8] n1 n1 Streets and Highways section 1806 provides similar treatment for city streets. Consequently, a two step procedure is required for imposing upon a county the responsibility of maintaining roads dedicated to public use. First, the offer of dedication is accepted, making them "public roads"; second, if the roadsgenerally meet county highway construction standards, the appropriate resolution is passed, accepting the roads into the county highway system and thus the responsibility for their maintenance. (See Benitez v. City and County of San Francisco (1978) 77 Cal. App. 3d 918, 920 922; County of Kern v. Edgemont Dev. Corp., supra, 222 Cal. App. 2d 874, 879; 59 Ops. Cal. Atty. Gen. 329, 336 (1976); 47 Ops. Cal. Atty. Gen. 191, 193 (1966); 4 Miller, supra, @ 24.54, pp. 107 108; 10 Hagman, supra, @ 361.13(5), p. 361:41.)
The conclusion to the first question, therefore, is that a county may accept an offer of dedication of roads for public use without accepting the responsibility of their maintenance prior to the roads becoming part of the county highway system by passage of the appropriate resolution. The second question presented concerns the [*9] authority of the county under the Act to require the maintenance of public roads by private individuals prior to the roads meeting county highway construction standards and becoming part of the county highway system. The Act provides that "there may be imposed by local ordinance a requirement of dedication or irrevocable offer of dedication of real property within the subdivision for streets, alleys, including access rights and abutter's rights, drainage, public utility easements and other public easements." (Gov. Code, @ 66475.) The offer of dedication is made by a certificate on the final subdivision map, and the offer is formally accepted at the same time as the final map is approved by the local entity. (Gov. Code, @@ 66439, 66477.1; 9 Hagman, supra, @ 291.06(1), p. 291:31.) When a local entity accepts an offer of dedication of roads under the Act, such streets are no longer private but become "public streets subject to public control as to their opening, continued use or closure." (47 Ops. Cal. Atty. Gen., supra, 191, 194.) As previously discussed, the significance of accepting an offer of dedication, whether under the Act or otherwise, is that the property becomes [*10] subject to public use; such acceptance does not necessarily resolve the issues of "ownership" or responsibility for maintenance. The Act refers only to acceptance "for public use in conformity with the terms of the offer of dedication." (Gov. Code, @ 66440.) As was stated in County of Kern v. Edgemont Dev. Corp., supra, 222 Cal. App. 2d 874, 878 879: "There is nothing in the statutes which imposes an obligation on the County to... improve, repair, maintain... the streets shown on the subdivision map until the County, in its discretion, by action of its board of supervisors, should determine to accept such streets as part of the county road system. (Sts. & Hy. Code, @ 941.)" Since the Act does not specify that subdivision roads must meet county highway standards n2 or that a county must accept responsibility for maintaining all roads accepted for public use, we must look to general principles concerning the reasonableness of requiring the parcel owners to maintain such roads. n2 Highways that "are necessary to public convenience" must generally meet county highway standards and the maintained by the county. (Sts. & Hy. Code, @ 941.) In the questions presented, however, the roads contemplated are in sparsely populated subdivisions and thus may not be "necessary to public convenience." (See Sts. & Hy. Code, @ 969; 20 Ops. Cal. Atty. Gen. 202, 223 (1952); 18 Ops. Cal. Atty. Gen. 284, 285 (1952); 7 Ops. Cal. Atty. Gen.,supra, 174, 177.) [*11] In general terms, a local entity may impose conditions for approving a subdivision that are reasonably related to and in furtherance of the purposes and requirements of the Act. (Associated Home Builders, Inc. v. City of Walnut Creek (1971) 4 Cal. 3d 633, 638; Ayres v. City Council of Los Angeles (1949) 34 Cal. 2d 31, 37 38; Kelber v. City of Upland (1957) 155 Cal. App. 2d 631, 636.) It is now settled that a subdivider may be required by the count to maintain roads dedicated for public use until they meet county highway standards and become part of the county highway system; such a
condition for approval of the subdivision is reasonable and proper. (County of Kern v. Edgemont Dev. Corp., supra, 222 Cal. App. 2d 874, 879; 47 Ops. Cal. Atty. Gen., supra, 191, 194.) Similarly, we believe that the approval of a subdivision may be conditioned upon the maintenance of the subdivision roads by the association of the subdivision parcel owners prior to the roads meeting county highway standards and becoming part of the county highway system. These individuals succeed to the interests of the subdivider and would be the principal beneficiaries and [*12] users of the subdivision roads.presumably, the purchase price of each subdivision parcel will reflect the lesser cost of constructing such roads, and the resulting obligation of the association for maintaining the roads will be considered by each prospective purchaser.we can find no significant distinction between the subdivider and the association members that would require a different result; in either event, the purchasers of the parcels will ultimately bear the costs of such maintenance. Since not all subdivision roads must meet county highway standards and a county may nevertheless require such compliance, it follows that a county should be able to demand maintenance of such substandard roads from either the subdivider or his successors in interest until the roads are properly constructed. This procedure provides planning flexibility without undue hardship being placed upon the subdivider, parcel owners, or the public at large. The conclusion to the second question, therefore, is that as a condition of approval of a subdivision, a county may require that the association of the subdivision parcel owners maintain the subdivision roads dedicated for public use until the roads [*13] meet county highway construction standards and become part of the county highway system. The third and fourth questions concern whether a non exclusive, appurtenant easement for road and utility purposes may be dedicated by the subdivider to the county for public use if the original grant of the easement to the subdivider did not (see question three) or did (see question four) contemplate public use. Generally speaking, an "easement" is that which allows the use of one's property by another, it is "nonexclusive" if it is not restricted to named users, and it is "appurtenant" if it is an incident to the use of the property and not personal to the holder; an appurtenant easement is transferable only with its dominant tenement. (Ogden, supra, @@ 13.7, 13.40, pp. 541, 568; 3 Miller, supra, @@ 18.1, 18.5, 18.51, pp. 243, 254, 358; 10 Hagman, supra, @@ 343.04(1), 343.40, pp. 343:9, 343:14.) It is fundamental that the transfer of an appurtenant easement may not materially change the character of the easement contemplated in the original grant. While a minor alteration in the use of an easement is permitted as long as the change is one of degree, the imposition of a new [*14] or additional burden upon the easement is prohibited. All uses must be incidental to the original grant and consistent with its purpose. (Code Civ. Proc., @ 806; Whalen v. Ruiz (1953) 40 Cal. 2d 294, 302; Pacific Gas & Electric v. Hacienda Mobile Home Park (1975) 45 Cal. App. 3d 519, 526; Atchison, T. & S.F. Ry. Co. v. Abar (1969) 275 Cal. App. 2d 456, 464 465; Norris v. State (1968) 261 Cal. App. 2d 41, 46 47; Wall v. Rudolph (1961) 198 Cal. App. 2d 684, 686, 694 695.) In questions three and four, a subdivider has obtained an easement over the land of another property owner for the purpose of creating roads and utilities lines to the subdivision. It is clear from the foregoing principles that the original grant of the easement to the subdivider must contemplate public
use of the easement in order that the subdivider may dedicate the easement to the county for public purposes. The conclusion to the third question, therefore, is that a non exclusive easement for road and utility purposes obtained by a private individual and appurtenant to his land may generally not be dedicated to a county for public use in the absence of express language [*15] in the original grant of the easement indicating that it is for public use. Without such an indication, the change from a private use to a public use would be prohibited as the imposition of a new and additional burden upon the easement. The conclusion to the fourth question, on the other hand, is that such an easement may be dedicated to the county for public use if the original grant to the subdivider was for "public road and utility purposes" or "public and private purposes." Public use under these circumstances would be contemplated and in keeping with the original grant of the easement.