Having shown the Right-of-Way has been used as a thoroughfare since at least 1881 and that it has been used for all purposes by the general public, and that said Right-of-Way has always been substantially along the route of its present location, we are now to show that under the facts, as a matter of law, the Right-of-Way is a public highway.
UCA §72-5-104 controls the creation of public use roads, providing that “[a] highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of 10 years.” This statute originates with An Act Pertaining to Highways, Chapter XXIX, Highways approved February 20, 1880[1] which provided:
Section 2. Highways are roads, streets or alleys and bridges laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the use of the public.
Section 3. Roads laid out and regarded as highways by the county court and all roads used as such for a period of five years are highways.
Chapter 12, Laws of 1886, Section 2, provided:
All roads, streets, alleys and brides laid out or erected by others than the public and dedicated or abandoned to the use of the public are highways. A highways shall be deemed and taken as dedicated and abandoned to the use of the public when it has been continuously and uninterruptedly used as a public thoroughfare for a period of ten years.”
This last quoted statute was carried into the Complied Laws of Utah, 1898, Section 1114:
In all counties of this state all roads, streets, alleys, lanes, cross places, trails and bridges laid out or erected as such by the public, or dedicated or abandoned to the public, or made such in actions for partition of real property are public highways.
Stichting Mayflower Mountain Fonds v. United Park City Mines Co.[2] provides a summary of how R.S. 2477 road creation intersects with historical road creation statutes in Utah.
The Mining Act of 1866, often referred to as R.S. 2477, opened up “mineral lands [in] the public domain” to be freely “explor[ed] and occup[ied]” by any U.S. citizen, or those who have “declared their intention to become citizens.” R.S. 2477, § 1. To that end, it granted the “right of way for construction of highways over public lands.” Id. § 8. ¶ 26 R.S. 2477 is no longer on the books. It was repealed in 1976 by the Federal Land Policy Management Act (FLPMA). Pub. L. No. 94-579 § 706(a), 90 Stat. 2743. Yet R.S. 2477 still rules us from its grave. It does so, as noted above, in light of the nature of the establishment of an R.S. 2477 right. See supra ¶ 13 n.2. Such a right attaches automatically on the basis of activity sufficient to establish a public road. No formal adjudication, deed, application, or license is required. Thus, an R.S. 2477 right may be recognized even today. If a plaintiff can show the existence of a public road based on activity prior to October 21, 1976 (the date of FLPMA’s enactment), then a court may recognize the existence of a road under R.S. 2477.”
The terms and conditions for establishing a public highway are largely “‘borrow[ed]’ from long-established principles of state law.” SUWA, 425 F.3d at 768. Thus, R.S. 2477 does not prescribe a specific time period in which a road must be subject to public use in order to become a public highway as a matter of federal law. Instead, the requisite “public use” time period is dictated by state law, such that the time necessary to establish an R.S. 2477 public highway may differ from state to state, and may vary within a state as state law is amended from time to time.
The latter point is front and center here. The period of public use necessary to establish a public highway has been amended over time under Utah law. Before 1880, the matter was governed by the law of prescriptive easement. In this era, in other words, the only way to establish that a road had been subject to public use for long enough that it became a public highway was to establish the elements of a common law prescriptive easement. See Harkness v. Woodmansee, 26 P. 291, 292 (Utah 1891) (“The right to a public road… by prescription arises from the uninterrupted adverse enjoyment of it under a claim of right known to the owner for the requisite length of time.”). And such a claim required proof that a particular road was adversely and continuously used by the public for twenty years.
The legal landscape in Utah was altered by the 1880 Highway Act. That statute, enacted in February 1880, provided that “all roads used as [highways] for a period of five years are highways.” 1880 UTAH LAWS 51, Chapt. 29 (emphasis added). So for uses from February 1880 going forward, a claimant could establish the existence of a public highway on the basis of public use for five years.
In Lindsay Land Live Stock Co. v. Churnos,[3] the Utah Supreme Court found “Use of road over public lands belonging to federal government as public thoroughfare for eighteen years, a time in excess of that required by Laws 1880, c. 29, § 2, and Laws 1886, c. 12, § 2, for creating public highway by use, held sufficient in law to amount to acceptance of grant of right of way over public lands by Rev. St. U.S. § 2477 ( 43 U.S.C.A. § 932), and therefore constituting a public highway by dedication.”
A court can find public use where there is sufficient evidence to support that finding, even where there may be more evidence to the contrary. Numerical disparity between the volume of evidence that supports public use and that which contradicts public use is not dispositive. If the evidence of public use is competent, then a finding of public use may be found.[4] Adjudication by a judicial authority[5] or recognition by the relevant highway authority[6] is not required. Circumstantial evidence, if credible, may be sufficient to prove the existence of a public road. The 10th Circuit has adopted the standard of clear and convincing evidence to describe the burden of proof on the party seeking to establish the existence of a RS 2477 right-of-way[7] and the Utah District Court suggested that the standard against a private owner is the same as the clear and convincing evidence standard .[8]
A. Five Years of Use Between February 1880 and March 1886
Acceptance of an R.S. 2477 right-of-way under the 1880 Law requires public use for any five-year period between February 20, 1880 and March 11, 1886. One would need to find the highway was used by the public from at least March 11, 1881 onward, less than ten months before Dickert noted the ‘old road’ in the 1881 survey notes. It is likely that public use of the ‘old road’ began before this 10-month period given wagon roads at the time were constructed by frequent use over time, compacting soil into defined ruts, and not by mechanical means. All use of the road was public since all land in the township was unreserved and no private rights existed prior to enactment of the 1886 Highway Law.
The first direct evidence of the existence of the Subject Road is found in 1881. The quarrying and transportation of sandstone out of Hendricks Canyon during 1881 would be enough evidence that the route up the Hendricks Canyon had developed into a well-used wagon road. This is borne out by the December 1881 field notes of a General Land Office surveyor who resurveyed the subdivisions of the township and made several notes of an old wagon road to Stone Quarry in the present-day location of the Right-of-Way.
Courts have held that historical maps and other historical evidence can serve as the evidentiary basis of the element of acceptance by the public. Haynes Land v. Jacob Family Chalk Creek[9] affirmed the district court’s public roadway ruling which “was based primarily on historical maps showing those roadways to have been well established… long prior to any private ownership of the lands in question” when the district court “made copious findings of fact, necessarily based largely on historical evidence, and concluded that those facts demonstrated by clear and convincing evidence that these portions of the Roadway had been dedicated to public use….”
The district court’s public roadway ruling determining that the Bench Road, the bulk of the Middle Fork Road, and a portion of the East Fork Road are public was based primarily on historical maps showing those roadways to have been well established as far back as 1875, long prior to any private ownership of the lands in question. The district court stated, [T]he demonstrable depiction of the Bench Road and Middle Fork Roads, to some point within Section 4 T2 R8, shows a road was created and use[d]. It is only logical that these two portions were used by someone or there would not be a road shown. A passage is created by use, where timber or vegetation is removed for ease of access. Continuous use allows the passage way (road) to remain and be depicted on a map. Similarly as to the East Fork Road to the middle of Section 8. A visible road in 1875, 1893, and on all maps thereafter, together with all the other evidence of vast usage, shows it was from early times in at least 1875 until statehood, used heavily by persons and that is what made the road visible to the surveyor and that use is what made the road visible on maps.
The district court also relied on “[t]he presence of sawmills, corrals, and homesteads along Bench Road and Middle Fork and along the portion of the East Fork Road to the middle of Section 8 show many persons were regularly using this road as far back as 1875.” Ultimately, the district court concluded that “the totality of the evidence” had convinced it “by clear and convincing evidence these portions of the road were used by the public continuously for at least 10 years, from at least 1880 to 1896.”
The Right-of-Way was used by William Bowman who travelled from his residence in Salt Lake City’s 11th Ward to work quarries in Emigration Canyon later acquired by Salt Lake Rock Company for several years prior to his death in October 1882.
The article in the Salt Lake Herald was an invitation for other teamsters to purchase quarried stone ‘on the ground’ and haul it for a profit over the public roads. This invitation was not permissive since Le Grand Young and the Salt Lake Rock Company did not legally obtain ownership to any property in Emigration Canyon until the early 1900’s well after title of the acquired parcels was deeded by the United States of America through Johns’ homestead patent in 1888 and Union Pacific’s railroad patent in 1897. The Right-of-Way was used by the public to quarry rock on site of the Hendricks Canyon, Brigham Fork, and Pinecrest quarries until at least 1888 as evidenced by the advert in the Salt Lake Herald on Christmas Day of that year and remained the only route to access the Hendricks Canyon and Brigham Fork quarries until at least 1890 according to the map of Salt Lake County prepared by Collier & Cleveland Lith. Co.
The way was also used by Lloyd G. Johns for at least one year between 1882 and 1888 to validate homestead entry patent 1965 for the Subject Property, as required by the Soldier’s Additional Homestead Entry under Section 2306.
Here, the evidence clearly shows that the public’s travel across the Right-of-Way was substantial enough to construct an old wagon road to stone quarries noted by federal surveyors in the 1881 and 1886 field notes and on the 1882 and 1891 maps. Usage by the public to access sandstone quarries on federal land, and subsequently for mineral prospectors, homesteaders, sheep herders, and recreationalists demonstrates the Right-of-Way remained continuous and substantially unchanged to be visible in all aerial imagery and subsequent maps well past the R.S. 2477 cut-off date in October 1976 and thus the public nature of the highway is unaffected. Based on the original government surveys of T.1N., R.2E., SLBM, and after consideration of the best available evidence, it is clear the Right-of-Way is the same as the roads first reflected on the Township map approved in 1882 and 1891. Further, the survey notes for the Township provide dimensional data to locate the roads in relation to sectional lines. The dimensions noted by the Township survey are consistent with locations found in other official maps and aerial/satellite imagery.
The 1882 map does not depict the portion of Hendricks Canyon Trail over which Emigration Estates Road and Twin Creek Circle exist today within Section 29 where the road did not cross section lines. Government surveyors conducted their surveys in accordance with the “Manual of Instructions” prepared by the U.S. Department of the interior, Bureau of Land Management, formerly the Government Land Office (GLO). Both the 1871 and 1881 manuals contain a section labeled “SUMMARY OF OBJECTS AND DATA REQUIRED TO BE NOTED.” Subsection 15 reads; “Roads and trails, with their directions, whence and whither.” Because of this instruction to surveyors, we can expect the locations reported of roads crossing section lines to be more accurate than the locations of roads interior to sectional lines. The road locations crossing survey lines are noted when the lines are actually “run” by the surveyor, while the road locations interior to those lines “run” are based on visual inspection, not on field measurements. In this case, the terrain likely obscured the surveyor’s line of sight to the interior road from the section lines.
Minor deviations in the road throughout its existence are inconsequential, as long as the road’s general location is definite.[10] Slight changes in the course of a highway or its location that do not materially change or affect the general course of the highway or affect its location or change the continuity of travel or use, do not constitute abandonment or affect the public nature of the highway.[11] “While the public cannot acquire a right by use to pass over a tract of land generally, but only in a certain line or way, it is not indispensable to the acquisition of the right that there should be no deviation in the use from a direct line of travel. If the travel has remained substantially unchanged, and the practical identity of the road preserved, it is sufficient, although there may have been slight deviations from the common way to avoid encroachments, obstacles, or obstructions upon the road.”[12]
FIVE YEARS OF PUBLIC USE BETWEEN 1880 AND 1886: Supported by direct and circumstantial evidence
Direct evidence establishes the Right-of-Way was created prior to the General Land Office 1881 field notes and 1882 map as the only particular route used by the public for access to quarries on federal land and a homestead claim when all underlying land was in the public domain. Old Quarry Road and Hendricks Canyon Trail cross the Private Parcels along the same route over 140 years later. Similar historical evidence was sufficient to make copious findings of fact demonstrating clear and convincing evidence of public use where a wagon road was described crossing private land when no live witnesses could testify as to the public’s use of the roads prior to the 1900s in Haynes.[13] Usage of the Right-of-Way is also supported by circumstantial evidence from newspaper articles inviting the public to quarry stone on the ground at quarries in Emigration Canyon and an experienced quarryman who worked the same quarries for several years prior to his death in 1882.
B. Ten-Year Period of Continuous and Uninterrupted Public Use After 1880
The 1880 act was superseded by Chapter 12, Section 2 of the 1886 Laws of the Territory of Utah[14] which increased the period of use from five to ten years and established two additional requirements for a road to become a public highway that comprise the current UCA §72-5-104[15]: (i) continuous use (ii) as a public thoroughfare (iii) for a period of ten years.
1. Ten Year Period
Any ten-year period of public use after February 20, 1880 is sufficient to establish a public road. If there is doubt that the road was in public use for five years prior to March 11, 1886, there is substantially more evidence of continued public use after 1886.
It makes no difference that Private Parcels under the Right-of-Way were transferred from the public domain to private ownership between 1891 and 1897.[16] Although it would not be an R.S. 2477 road if created after the property was removed from the public domain, the road nonetheless may be established by any ten-year period of public use.
2. Continuous Use
Under recent legislative development, UCA 72-5-104(3) now provides that continuous use is satisfied if the use is as frequent as the public finds convenient or necessary and may be seasonal or follow some other pattern. This differs from the historical burden. Previously, “[t]he Utah Supreme Court has determined that continuous use of a road exists when ‘the public, even though not consisting of a great many persons, made a continuous and uninterrupted use’ not necessarily every day, but ‘as often as they found it convenient or necessary.’”[17]
Prior to this statute, common law established “use may be continuous though not constant . . . provided it occurred as often as the claimant had occasion or chose to pass. Mere intermission is not interruption.”[18] While this standard is still relevant, the threshold has dropped somewhat significantly. Many federal courts have expressed concern over this new standard, interpreting the revised statute to diminish the prior importance frequency played in the analysis.
3. Public Thoroughfare
The “public throughfare” element refers to a “place or way through which there is passing or travel” by the public.[19] To demonstrate the existence of a public throughfare, a claimant must show: “(i) passing or travel, (ii) by the public, and (iii) without permission.” Under this analysis, courts will typically consider the frequency and variation of the uses by assessing the type of use, its regularity, or its impact on the land. For example, in Lindsey Land v. Churnos, the Utah Supreme Court found the claimed road was used by the public generally, reasoning that “[t]he road was used by many and different persons for a variety of purposes [and] the use made of it was as general and extensive as the situation and surroundings would permit, had the road been formally laid out as a public highway by public authority.”[20]
Comparatively, pathways intermittently or occasionally used by hunters, fisherman, and shepherds, farmers, and miners is insufficient, as well as roads regularly used by a single cattleman for driving cattle.[21] In both cases cited, the use by two individuals in trailing their sheep and cattle to and from grazing lands used by them was insufficient to establish public use.
SUWA[22] analyzed this issue extensively:
By contrast, in Luchetti v. Bandler,108 N.M. 682, 777 P.2d 1326 (App. 1989), the New Mexico Court of Appeals affirmed a trial court decision rejecting an R.S. 2477 claim for a right of way, despite testimony by at least four witnesses that they and other members of the public used the road for picnics, hiking, hunting, and access to a spring. The court concluded: “we cannot say that use to reach a single private residence, hike, picnic, or gather wood, or to reach a watering hole, was sufficient to require a finding of acceptance of the government’s offer to dedicate the road as a public highway.” Id. at 1328. Similarly, in Moulton v. Irish, 67 Mont. 504, 218 P. 1053 (1923), the Montana Supreme Court reversed, as “not supported by the evidence,” a trial court ruling that an R.S. 2477 highway existed, where two witnesses testified to use of a “road or trail along the creek,” which they used “perhaps ‘once a year, twice a year, three times; not over that; maybe some years not at all.'” Id. at 1055, 1054. See also Hamerly v. Denton,359 P.2d 121, 125 (Alaska 1961) (acceptance not established by infrequent and sporadic use, by sightseers, hunters, and trappers, of a dead-end road running into wild, unenclosed, and uncultivated land); State ex rel. Dansie v. Nolan, 58 Mont. 167, 191 P. 150, 152 (1920) (“It is inconceivable that it was the intention of Congress and of the Legislature to say that two or more persons crossing at random on each of a dozen trails . . . could constitute an acceptance of the government grant as to each of such trails. . . .”); Town of Rolling v. Emrich, 122 Wis. 134, 99 N.W. 464, 465 (1904) (rejecting R.S. 2477 claim on the basis of “a few months’ desultory use by a few persons of a logging road or trail through the woods, with no acts by the public authorities of any kind”).
The use must be by the public, and not just adjoining property owners. Permissive users are broadly defined as adjoining landowners whether they be residential or commercial; residential and business invitees; employees of the adjoining landowners; those with prescriptive rights; and any other person or entity who has been granted permission to use the road. “It is important here to note that our case law has distinguished between use of a road by owners of adjoining property and by the general public. Such property owners cannot be considered members of the public generally, as that term generally is used in dedication by user statutes.[23] This is because adjoining owners may have documentary or prescriptive rights to use the road or their use may be by permission of the owners of the fee of the road.”[24]
Jennings Investment v Dixie Riding Club found adequate public use to accept a public road where “all public use evidence was presented by current or former owners of adjacent property.” While the continuous use required to establish a public road must be by members of the public, it is not fatal to such a claim that some of those using the road also own property in the area, where those using the road do not have documentary or prescriptive rights to cross private land. Adjacent landowners are not considered members of the public when evidence is presented to the contrary demonstrating documentary or prescriptive rights to disqualify them. Dixie did not “provide any legal support for the proposition that evidence of public use of the road provided by adjacent owners cannot establish public use under the Dedication Statute.”[25]
TEN YEAR PERIOD OF CONTINUOUS AND UNINTERRUPTED PUBLIC USE AFTER MARCH 1886: supported by direct and circumstantial evidence
There is copious evidence that the public continued to use the Right-of-Way to access quarries, mining claims, and homesteads along the Right-of-Way for the 10-year period required to establish a public highway. The evidence suggests the road was used by the public for a variety of purposes, and its use was as general and extensive as the situation would have permitted had it been laid out as a public highway by a public authority.
The Right-of-Way remained the only route to access the Salt Lake Rock Company and Emigration Canyon Rock Company sandstone quarries in Hendricks Canyon and Brigham Fork until around the time the Emigration Canyon Railroad started service in 1908. These quarries continued commercial operations until the railroad was abandoned in 1917. Two additional sandstone quarries had frontage on the Right-of-Way which provided access to a dozen mining claims located between 1894 and 1910 around the Subject Property. Eight homestead claims were made along the Right-of-Way on which at least five families established permanent residence for a minimum of five years while cultivating crops and grazing livestock to perfect the patents. Around 6,000 sheep were grazed by one family who setup camp on the Subject Property where springs were used to water the heard between May and October from at least 1914, though it was used by the public for the same purpose from around 1900.
Direct evidence exists from official federal and county maps, imagery, and GIS data from 1882, 1890, 1891, 1908, 1933, 1940, 1953, 1957, 1961, 1963, 1975, 1977, 1983, 1985, 1987, 1993, 1997, 1998, 1999, 2001, 2003, 2006, 2007, 2009, 2012, and 2020. The Right-of-Way has remained over the same route and been maintained in a condition suitable for public use by over 140 years of continuous use while disused portions of Old Quarry Road beyond the Right-of-Way have become overgrown.
In this case, all users were members of the public because no easements or other permissive use over the Right-of-Way was documented prior to 1985. All land under the Right-of-Way was held by the federal government by authority of the Treaty of Guadalupe Hidalgo until removed from the public domain between 1891 and 1897. Pioneer Fork Road was not approved by the Salt Lake County Commissioners until 1985 with Emigration Estates Road and Twin Creek Circle approved in 1994 and 2000 respectively. The public record contains no evidence of statutory, documentary, prescriptive, or permissive right to use the Right-of-Way for any adjoining property owners prior to platting of the above roads for more than 100 years of public use. There is no evidence to support adjoining property owners were not members of the public because they “may have documentary or prescriptive rights to use the road or their use may be by permission of the owners of the fee of the road.”[26]
[1] Laws of the Territory of Utah, Sec. 3, at p. 51 (1880).
[2] Stichting Mayflower Mountain Fonds v. United Park City Mines Co., No. 20150047, 7-8 (Utah 2017)
[3] Lindsay Land Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646 (Utah 1929)
[4] State of Utah v. Six Mile Ranch, 132 P.3d 687 (Utah Ct. App. 2006).
[5] Stichting Mayflower Mountain Fonds v. United Park City Mines Co., No. 20150047, 7-8 (Utah 2017)
[6] Wilson v. Hull, 7 Utah 90, 24 Pac. 799, declared “There being in Utah Territory no statute covering any formal acceptance by officers or agents in charge of public roads of land dedicated by owners for highways, the court is not prepared to say that an acceptance may not be inferred, under some circumstances, from the action and use of the public generally, without any action by the body charged with the repair of public roads.”
[7] San Juan Cty. v. U.S., 754 F.3d 787 (10th Cir. 2014)
[8] Kane Cty. v. U.S., 2013 U.S. Dist. LEXIS 40118, 119 (Utah Dist. Ct. 2013).
[9] Haynes Land v. Jacob Family Chalk Creek, 2010 UT App 112, 233 P.3d 529
[10] High Lonesome Ranch, LLC v. Bd. of Cnty. Comm’rs for Garfield, 508 F. Supp. 3d 801 (D. Colo. 2020)
[11] Sullivan v. Condas, 290 P. 954 (Utah 1930)
[12] Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646 (1929)
[13] Haynes Land v. Jacob Family Chalk Creek, 2010 UT App 112, 233 P.3d 529
[14] Laws of the Territory of Utah, Chapter 12, Section 2, p. “All roads, streets, alleys and bridges laid out or erected by others than the public and dedicated or abandoned to the use of the public are highways. A highway shall be deemed and taken as dedicated and abandoned to the use of the public when it has been continuously and uninterruptedly used as a public thoroughfare for a period of ten years.” Section 30 states, “This Act takes effect on and after its passage. Approved March 11, 1886.”
[15] These territorial-era laws are no longer in effect, but their subsequent repeal and replacement by other road creation statutes does not affect the validity of public roads created while the statutes were in effect.
[16] Utah Dept. of Transp. v. Walker Development Partnership, 2014 UT App 30, ¶ 19, 320 P.3d 50.
[17] AWINC, 112 P.3d 1228, quoting Boyer v. Clark, 326 P.2d 107 (Utah 1958)
[18] Richards v. Pines Ranch, Inc., 559 P.2d 948 (Utah 1977).
[19] Heber City Corp. v. Simpson, 942 P.2d 307, 311 (Utah 1997).
[20] Lindsay Land v. Churnos, 285 P. 646 (Utah 1929).
[21] Harding v. Bohman, 491 P.2d 233, 234 (Utah 1971); Cassity v. Castagno, 347 P.2d 834, 834–35 (Utah 1959).
[22] So. Utah Wilderness v. Bureau of Land Mgmt, 425 F.3d 735, 775-76 (10th Cir. 2005).
[23] Petersen v. Combe, 438 P.2d 545 (Utah 1968).
[24] Kohler v. Martin, 916 P.2d 910 (Utah Ct. App.1996); See also Utah County v. Butler 147 P.3d 963, 2006 UT App. 444 (Utah Ct. App. 2006).
[25] Jennings Investment v. Dixie Riding Club 208 P.3d 1077, 2009 UT App. 119 (Utah Ct. App. 2009)
[26] Kohler v. Martin, 916 P.2d 910 (Utah Ct. App.1996), Utah County v. Butler, 2008 UT 12, ¶ 19, 179 P.3d 775.