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 Reserved land included land withdrawn from homestead, such as National Forest and national Parks. There is even some claim that BLM land was withdrawn under the 1934 Taylor Grazing Act.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".