Posted on 07/04/2005 9:42:14 PM PDT by stop_rs2477
RS 2477 Reform is Needed to Protect Private Property
Mark Boslough
A lot has been said about the 1866 law known as RS 2477. Some people have even suggested that RS 2477 protects access to inholders who are surrounded by Federal land. While this may be true in some circumstances, it is a double-edged sword--a very sharp and dangerous one.
Landowners who invoke RS 2477 could end up deeply regretting it, because its use could result in creating a public road or off-road recreation area on their own property. And since there is a vast array of other laws that can be used to create private easements for access (as opposed to public highways), inholders do not need to put their own property at risk.
For example, private prescriptive easements can be created along roads that have been used for access over a period of time (the period depends on state law). Inholders can always invoke an easement by necessity, which makes use of a condemnation process. Different states have various other laws, but the point is that inholders do not have to risk having their access road (including the portion that crosses their own property) recorded as a public highway, as it would be if RS 2477 were invoked.
Use of RS 2477 is not just a theoretical threat. My family found out first-hand that the threat is very real. Off-road organizations are actively promoting it as a means of creating recreation areas on private land.
Off-road clubs have a two-pronged strategy. First, they try to get county governments to seize rights-of-way across private land. If that doesn’t work they are willing to form vigilante groups that tear down fences, gates, barriers, and signs along routes they consider public under RS 2477.
There is a major legal problem with both of these approaches. Foremost, who has the burden of proof? Should ranchers be forced to defend their land by proving that their roads were built after their property was homesteaded? Can a county government declare that a road across private property pre-existed the patent and seize it without proof, or is documentation required? Regardless of one’s position on RS 2477 itself, that burden on owners would set a dangerous precedent that would certainly lead to abuse and erosion of private property rights that we hold dear.
The off-road vigilante approach also has problems. If a private group declares a right-of-way across private property and forms a shovel brigade to keep it open without fear of prosecution, then trespassing laws become ineffective. Any ATV rider, motorcyclist, or renegade hunter that is trespassing on private property for any reason can simply declare that they are on an RS 2477 route. Again, private property rights are eroded. Moreover, acceptance of vigilanteism reflects a loss of faith in the rule of law that is a fundamental pillar of our republic.
Nevertheless, off-road clubs have used the vigilante method against my own family’s property. My wife is a Colorado native with deep roots in the same area where I grew up. Since 1960, her family has owned a ranch crossed by Barking Dog Trail In recent years, this footpath and an adjacent creek were taken over by recreationists who drove specially modified rigs that are designed to crawl over the giant boulders that had formerly kept motorized vehicles out.. By the mid 1990’s a spider web of destruction was spreading like a cancer across the foothills and meadows of the ranch and surrounding land
In the late 1990’s I bought more land and doubled the size of my wife’s ranch. My intention was to restore the stream and re-create the healthy wetlands, improving wildlife habitat and reducing fire hazard by thinning the trees. I hired a forester at great expense. I went through the Colorado State Forest Service Approval process. I hand-planted hundreds of seedling trees; some to prevent erosion and others to harvest as Christmas trees to provide environmentally friendly income from our little forest agriculture operation when we retire.
But my project was sabotaged by a vigilante group calling itself About Public Lands (APL), consisting of members of the Mile-Hi Jeep Club and Trailridge Runners 4WD clubs, who claimed that Barking Dog Trail was open for public motorized recreation under RS 2477.
Like the Earth Liberation Front (ELF), which has claimed responsibility for similar acts of vandalism, APL ‘s activities have been reported by Stop Eco-Violence! SEV is an organization that monitors criminal acts of willful destruction and personal harassment that, according to its web site, have “inflicted significant, inexcusable harm on private citizens, law-abiding businesses, institutions and local communities.”
National off-road organizations like the Blue Ribbon Coalition and Tread Lightly have so far refused to condemn the vigilante activities of emerging groups like APL. In fact, national groups like Off-Road.com are taking strong anti-landowner positions.
In an attempt to justify vigilante attacks against private property, Off-road.com Land Use Editor Brad Ullrich wrote an article last year that made many statements about my family’s land that are demonstrably false. Ullrich (who has never been to Barking Dog Trail and is unfamiliar with the local geography and history) seems to think that the burden of proof is on landowners, not on the off-roaders who want to recreate on private property.
Ullrich closed his article with this direct challenge to me personally: “I am wondering on what you are basing the closing of the Barking Dog Road (sic).” Here is my answer: “… nor shall private property be taken for public use, without just compensation.” The fifth amendment of our Constitution trumps RS 2477.
Mark Udall’s RS 2477 reform bill deserves a second look by landowners who are concerned about preserving their property rights. In my view, his proposed legislation deserves broad bi-partisan support.
Fore more information, visit the author's web site: Balarat Creek Ranch RS 2477 Page
What you can do:
If you are a landowner who has had problems with off-road trespassers, please consider joining Property Owners for Sensible Roads Policy (POSRP). Contact the president at RS 2477 POSRP.
The Original Text Of The Mining Act of 1866 States: "The
right-of-way for the construction of highways over public lands, not reserved for public purposes, is hereby granted."
RS 2477 created rights of way over public land. Private land is only burdened by it if the right of way was created prior to the land being patented into private ownership, then it is a public easement over private land.
RS 2477 easements could not be created over "reserved" land. Reserved land included land withdrawn from homestead, such as National Forest and national Parks. There is even some claim that BLM land was withdrawn under the 1934 Taylor Grazing Act.
In any event, FLPMA in 1976 stopped any additional rights of way from being created by public use after that date. It could not, however, stop public rights of way that had already been established through use. One cannot repeal a law under which historic rights have already vested.
Good points, except that who do you believe when one guy says there was a road 150 years ago and another guy says there wasn't? And everybody who was alive to be a witness is dead, and there weren't satellites or aerial photos in the 1860's, and maps were crappy and not very accurate or didn't even show roads.
I think that's why the burden of proof is on the person claiming a right of way to prove the road was there. If they can't prove it was there, then no easement. Otherwise anybody could go anywhere and just say "there was road here 150 years ago".
Bump. Thanks for this post. Bravo!
It is great to see Americans so aware of, & energized in defense of, private property rights by addressing threats, this terrible precedent (Kelo v. New London), and becoming aware of the downside of activist Judges. I have been concerned with both of these related issues for about a decade. I even had brief, separate, conversational encounters with two of the "good" Justices (Scalia & Thomas) in the Kelo case about 6 or 7 years ago re: "The Takings Clause" of the 5th Amendment designed to protect private property from arbitrary seizures, but providing for Eminent Domain for certain "public use" (NOT "public purpose") . It was clear they were anxious to see some good cases walk toward them. I doubt if they would have predicted the bizarre outcome in Kelo, though.
For those of us who are deeply concerned with protection of Private Property from improper application of Eminent Domain in contravention of the Original Intent of the Founders in the 5th Amendment's Takings Clause, I am registering a warning or a concern:
I think AG (& potential USSC Nominee) Alberto Gonzales is very weak on Private Property Rights and lacks an understanding of orignainl intent of the 5th Amendment's Takings Clause (Eminent Domain) based both upon some cases when he ws at the texas Supreme Ct. (e.g., FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000))
and, more recently and significantly, upon his NOT having joined in the Kelo case on the side of property owner. My understanding ws that he had sided with the League of Cities against Kelo while WH Counsel.
As some have frequently observed, he certainly believes in a "Living Constitution" and is NOT a strict constructionist or an Originalist, but rather tends toward the Activist side, per National Review Online and others.
He has been sharply critical of Priscilla Owen in some Texas Supreme Ct. decisions when they were both on that Ct. as Justices, and he has been quoted as being sharply criticial fo Janice Rogers Brown, including being quoted by People for the American Way in their ultra-leftist propaganda.
The way it works is: If a prima facie case (more likely than not or on the face of it) is made, the burden of proof shifts to the one attacking the road.
The court has ruled that the showing does not have to be shown on any map.
The law regarding 2477 roads has been repealed, but any roads that existed prior to the repeal are still covered by the law.
I have done extensive research on this subject and all it requires is that a trail be in existance prior to the homestead. It could be as little as a pack train trail.
If the trail has moved since, it is still a public way.
The individual complaining about this has been on notice for over 100 years. When they bought the land, it had the right of way with it. The homestead grant included a provision for existing roads, ditches, trails etc.
Thanks for the info!
There are ways that the existence of an historic road can be determined - vegetation changes and other things. there is a man in our county who has determined the original paths of historic wagon roads such as the Yreka trail. He has had some of these designated as national historic trails.
Thanks for the addditional info.
A pack train trail is not a highway no matter how you stretch your imagination. My research has shown that many mining roads in Colorado were built by private mining companies with their own money and labor, on their own property. RS 2477 of course does not apply to such roads but the ATV lobby is trying to get access to private land.
The anti-landowner lobby would have you believe that RS 2477 is a good thing because it means no rancher or homeonwer can ever prosecute a trespasser. All the trespasser has to do is to say that he was on a RS 2477 right of way, and then the landowner has to prove that it's not. That's why RS 2477 is so popular with trespassers and ATV riders.
A pack train trail is not a highway no matter how you stretch your imagination. My research has shown that many mining roads in Colorado were built by private mining companies with their own money and labor, on their own property. RS 2477 of course does not apply to such roads but the ATV lobby is trying to get access to private land.
The anti-landowner lobby would have you believe that RS 2477 is a good thing because it means no rancher or homeonwer can ever prosecute a trespasser. All the trespasser has to do is to say that he was on a RS 2477 right of way, and then the landowner has to prove that it's not. That's why RS 2477 is so popular with trespassers and ATV riders.
" Acquiring property does not give you the power to unreasonably deny access to a long established right of way."
But most of the disputed cases don't involve established right of ways. They involve allegations that haven't been proven. That's why the courts have consistently put the burden of proof on the trespasser.
" Acquiring property does not give you the power to unreasonably deny access to a long established right of way."
But most of the disputed cases don't involve established right of ways. They involve allegations that haven't been proven. That's why the courts have consistently put the burden of proof on the trespasser.
sorry for the extra posts. I don't know how to work this thing.
The Federal Court has cited a case from Wyoming called the Hatch vs Black case where it was ruled that a pack train trail was a public right of way.
In Bishop vs Hawley, it was held that such rights of way are 100 feet wide and are livestock driveways also.
The route was established by travel by the public, over public land. It does not have to be an improved road nor must it be recorded. All subsequent land titles are subject to the 1866 law.
Present landowners cannot be deprived of what was never theirs in the first place.
Thenks for the info. Looks like this is a case where their wa s actually proof of prior use. I'm hoping you aren't claimng that ranchers have to prove that there was never prior use. That would certainly turn the Constitution upside down.
I am saying that there has to be sufficient showing of prior use to make a prima facie case.
It does not have to be strong enough to be "proof".
After a prima facie case is made, all presumptions go to the prima facie case and the burden of proof shifts to the one opposing the road.
If the prima facie case is not overcome with "proof", the road is shown to exist.
For instance, if the one claiming there is a right of way presents a Government Land Office map showing the right of way, it establishes a prima facie case that there was a right of way there when the Government Surveyors surveyed to make the map.
Ancient documents are given a presumption of validity and so that presumption is taken as fact. The document cannot be attacked as in error because the person who prepared it cannot be cross examined.
Similar treatment is given to other presumptions. The presumptions do not have to be based on "proof" but rather can be based on inferences.
A similar presumption can be made that there was travel along a river to access land further up the river. The travel then made a public right of way for similar travel by other members of the public.
Rights of way that were dedicated to the public by this law never expire. The one who homesteaded the land, probably followed the existing trail to get to the land they homesteaded. A presumption can be made that they were not the first to travel that way to the land, and so were on notice that a trail existed prior to the homestead grant.
There are two parts of Hatch vs Black, the second is a rehearing of the first and the court further explained the operation of this law. It is still good law and is cited in federal cases as well as other states.
As I stated earlier, I have done extensive research on this.
I spent over 400 hours. Anyone else can research and find the same information.
But most of the disputed cases don't involve established right of ways. They involve allegations that haven't been proven. That's why the courts have consistently put the burden of proof on the trespasser.
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rs2477 wrote:
Thanks for the info. Looks like this is a case where their was actually proof of prior use. I'm hoping you aren't claimng that ranchers have to prove that there was never prior use. That would certainly turn the Constitution upside down.
Geography doesn't lie. -- A trail through natural passes, around swamps, lakes, etc, cannot be closed by merely acquiring the surrounding property. Our Constitutional rights of way trump 'absolute' property rights.
I should further explain.
In my research I cite about forty cases. Some cite Hatch vs Black and expand on the explanation.
There is extensive case law on this subject.
There is another law that applies it some of these situations. It is also an old federal law called the Unlawful Enclosures Act.
It was passed prior to homesteading and so its provisions are incorporated, by reference, into all homestead grants.
These laws do not infringe on private property rights because they are all incorporated in the land grant by reference. (Existing laws are all incorporated by reference even if it is not explicitly stated on the grant.)
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