Thursday, April 13, 2017

Historic Road: RS-2477 Case History

I can't claim credit for the following synopsis of the RS-2477 statute and how it has been interpreted by the courts throughout the years.

Nevertheless, it is a good source of information.


R.S. §2477 of the United States Statutes, in effect at the time of the survey, and enacted in 1866, provided free access to the public lands of the United States, including public lands in Colorado.

The Supreme Court of the State of Colorado in Leach v. Manhart, 102 Colo. 129 stated that R.S. §2477 roads are public roads in the State of Colorado, as cited in Martino v. Board of County Com’rs of County of Pueblo, 360 P.2d 804 :

“ In Leach v. Manhart, 102 Colo. 129, 77 P.2d 652, 653, we find the following:
"The premises considered, we think a statute of the United States enacted in 1866 R.S. § 2477, U.S.Comp.Stat.1918, *807 § 4919, Title 43, U.S.C.A. § 932, reading as follows: `The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted,' is controlling. We have had occasion to consider that statute in varying situations. See Sprague v. Stead, 56 Colo. 538, 139 P. 544; Greiner v. Board of County Commissioners, 64 Colo. 584, 173 P. 719; Dunbar v. Kohler, 66 Colo. 272, 180 P. 739; Nicolas v. Grassle, 83 Colo.536, 267 P. 196, 197; Korf v. Itten, 64 Colo. 3, 169 P. 148.

The sum of our holdings is that the statute is an express dedication of a right of way for roads over unappropriated government lands, acceptance of which by the public results from `use by those for whom it was necessary or convenient.' It is not required that `work' shall be done on such a road, or that public authorities shall take action in the premises. User is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices. `A road may be a highway though it reaches but one property owner. 29 C.J. 367. He has a right to access to other roads and the public has a right of access to him. Pagels v. Oaks, 64 Iowa 198, 19 N.W. 905, 907. Its character is not determined by the fact that but few persons use it.' * * *."(Emphasis Added.)

In Heath v. Parker, 30 P.3d 746 (Colo. App., 2000) the court discussed access to mining claims by public roads created by R.S. §2477:

“Once a road is established as a public road, it may be used for all uses allowed to the public under the laws of the state. See Lovvorn v. Salisbury, 701 P.2d 142 (Colo.App.1985).

Thus, the use of the Road for mining and access was no less legitimate than its use as a thoroughfare between Boulder and Gold Hill. See Olson, The R.S. 2477 Right of Way Dispute: Constructing a Solution, 27 Envtl. L. 289, 292-93 (1997) (purpose of R.S. 2477 was to provide access rights to land claims of miners, settlers, and local governments).

Furthermore, a right of access is necessary to satisfactory and beneficial use of land. See, e.g., Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883). (Emphasis Added. The road in question was once the main road from Idaho Springs to Central City.)
Moreover, a "highway" includes, but is not necessarily, a route for the travelling public from one point to another.

Although in some jurisdictions a highway is statutorily defined as requiring public vehicular travel, see Lee v. State, 997 P.2d 138 (Nev.2000), Colorado has adopted a broader definition of what constitutes a "road" or "highway". See § 43-2-201, C.R.S.2000; Simon v. Pettit, 687 P.2d 1299 (Colo.1984) (depending on the context, a footpath may be considered a highway). Under R.S. 2477, this includes roads created by the "passage of wagons, etc." See Central Pacific Ry. v. Alameda County, 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932). (Emphasis Added.)

Accordingly, a county cannot, without compensation, formally abandon a public road if such action would deprive abutting landowners of access to their property. See § 43-2-303(2)(a), C.R.S.2000; see also Leach v. Manhart, 102 Colo. 129, 133, 77 P.2d 652, 653 (1938) (a property owner "has a right to access to other roads and the public has a right of access to him"); Ord v. Fugate, 207 Va. 752, 152 S.E.2d 54 (1967); 2 B.K. Elliott & W.F. Elliott, Law of Roads & Streets § 1180 (4th ed.1926) ("where the vacation of a highway will cause special injury to an adjoining owner he is entitled to compensation").

Scott Amos

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