Can a Florida county use its own crews and equipment to repair private dirt roads?

Plain-English summary

Franklin County asked whether it could send its own personnel, equipment, and materials to repair private dirt roads. In an informal response, Senior Assistant Attorney General Gerry Hammond pointed to a body of Florida case law and prior Attorney General opinions holding that public funds may be spent only on the construction, maintenance, or repair of public roads.

A "public" road, the office explained, is one open to and set apart for the public; a private road by its nature is not open to the public and the public has no right to travel on it. The fact that some public vehicles (school buses, for example) might use a private road does not by itself let a county spend public money to maintain it when the general public cannot use it. Rather than issue a formal opinion, the office enclosed several earlier opinions and pointed the county to its searchable opinion database.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can a county ever spend public money on a private road?
A: Under the rule the opinion restated, public funds may be used for road construction, maintenance, or repair only when the road is public. The office did not identify an exception for private roads in this informal response.

Q: What makes a road "public" rather than "private"?
A: The office described a public road as one open to and set apart for the public, contrasted with a private road that is not open to the public and on which the public has no right to travel.

Q: Does it matter that school buses or other public vehicles use the road?
A: The opinion cited an earlier opinion (AGO 92-42) concluding that allowing certain public vehicles such as school buses to travel a private road did not authorize a county to spend county funds maintaining it when the general public was not allowed to use it.

Q: Why was this an informal response instead of a formal opinion?
A: The office said it had already addressed these scenarios in many prior opinions, so it enclosed several of them and directed the county to the searchable AG opinions database rather than issuing a new formal opinion.

Background and statutory framework

Florida courts and the Attorney General have long held that public funds may be spent only for public purposes, and that maintaining a purely private road does not qualify. The opinion cited appellate decisions including Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966), and Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963), along with a line of prior AG opinions. It also noted Lovey v. Escambia County, 141 So. 2d 761 (Fla. 1st DCA 1962), where a county's maintenance of a road for more than four years raised a presumption that the road had been dedicated to public use, a reminder that the public-versus-private line can turn on the specific facts of how a road has been used and treated over time.

Citations and references

Cases:

• Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966)
• Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963)
• Lovey v. Escambia County, 141 So. 2d 761 (Fla. 1st DCA 1962), maintenance for more than four years raised a presumption of dedication

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/private-roads-use-of-public-equipment-to-repair
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8116

Original opinion text

Mr. Thomas M. Shuler
Franklin County Attorney
40 4th Street
Apalachicola, Florida 32320

Dear Mr. Shuler:

Thank you for your letter of May 3, 2013, requesting this office's assistance in determining whether Franklin County may use its personnel, equipment, and materials to affect repairs to private dirt roads. Attorney General Bondi has asked me to respond to your letter.

Your letter presents various scenarios and factual issues which have been addressed over the years in a number of previously issued Attorney General Opinions. The courts of this state and this office have concluded that public funds may only be spent for the construction, maintenance, or repair of public roads.[1] In Attorney General Opinion 92-42, this office stated that the fact certain public vehicles, such as school buses, were permitted to travel on a private road did not authorize a county to expend county funds to repair and maintain the road when the general public was not allowed to travel on it.

A governmental entity, therefore, may use public funds for the construction, maintenance, or repair of a road only when the road is a "public" road. This office has concluded that a "public" road is one open to and set apart for the public, as contrasted to a private road which by its nature is not open to the public and upon which the public has no right to travel.[2]

I am enclosing several previously issued Attorney General Opinions dealing with the issue of construction, maintenance, or repair of public roads and under what circumstances public funds may be expended for those purposes. Because this office has a large number of opinions on this topic, you may wish to visit our website to read through them and determine which may be helpful in the various situations that may present themselves. Please go to www.myfloridalegal.com and then to the Legal Resources / AG Opinions section. This is a searchable database of previously issued Attorney General Opinions dating from 1971. Additional historical material may be accessed if your research indicates an Attorney General's Opinion issued prior to 1971 would be helpful. This older material is also available on our website.

I trust that the copies I am enclosing will be helpful to you in advising the county commission and that we may have the opportunity to work with you in the future.

Sincerely,

Gerry Hammond
Senior Assistant Attorney General

GH/tsh

Enclosures: Ops. Att'y Gen. Fla. 12-33 (2012), 02-48 (2002), 99-15 (1999), and 92-42 (1992); Inf. Op. to Feagle dated 9/9/11

[1] See Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966); Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963); Ops. Att'y Gen. Fla. 99-15 (1999), 94-89 (1994), 78-88 (1978), 75-309 (1975), and 73-222 (1973). Cf. Lovey v. Escambia County, 141 So. 2d 761 (Fla. 1st DCA 1962) (county's maintenance of road for more than four years raised presumption of dedication).

[2] Ops. Att'y Gen. Fla. 99-15 (1999).