QUESTIONS RELATING THE BIKE PATHS

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hereafter received in paid fund are appropriated for the acquisition of rights-of-way for, and construction, reconstruction, improvement, and maintenance of, public streets and highways subject to and in accordance with the provisions of this title." The term streets and highways are not defined as such in the Code, however, the Government Code Section 65002 defines street very broadly to include: "...street, highway, freeway, expressway, avenue, boulevard, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement and .right-of-way, and other ways." Based on the above plus the fact that as a practical matter it is not merely car pathways that are involved in highway tax monies at present but also pedestrian pathways, it seems to imply that the highway use tax money could be employed for a bike path, especially one adjacent to and contiguous with the presently existing right-or-way. QUESTION NO. 3. May the City Condemn Railroad Right- of-Way for the Establishment of Bike Paths Where the Railway Right- -- of Way Appears to be far in Excess of any Conceivable Future Railway Need. What steps must be taken through the PUC to acquire this Right- of-Way if acquirable? ANSWER NO. 3. Under certain circumstances the City may condemn a railway right-of-way for a bike path. ANALYSIS At the primary level is the question of the acqui- sition in relation to state law. As explained and cited in previous opinions of this office, especially those concerning the Willowick Golf Course, public property may be condemned by another governmental entity provided it is for a higher use. In this situation this would be the first hurdle to overcome. It appears that with the emphasis on recreational and environ- mental type of improvements, a bike path might well be a higher use than a railway right-of-way especially if that is above the amount actually needed for the railroad. This could be a question which might have to be litigated. 119