Section 8 of the Mining Act of 1866 stated that “the right of way for the construction of highways over public lands, not reserved for public uses is hereby granted.” The section was codified as section 2477 of the Revised Statutes, and has been referred to since then as “R.S. 2477.” The section was included in the 1866 Mining law primarily to facilitate access across public lands. In 1976, section 706 of FLPMA repealed R.S. 2477, but recognized valid rights-of-way existing before the date of enactment of FLPMA. The repeal did not provide any time limitation on filing claims for pre-1976 rights-of-way.1
Background
In 1870, under the “Placer Act” or U.S. Mining Law amended July 9, 1870, (vol. 16 Statutes at Large p. 217; U.S.C. vol 30, section 35,) Congress also clarified that it was its intent that the water rights and rights-of-way to which the 1866 legislation related were effective not only against the United States but also against its grantees; that anyone who took title to public lands took such title burdened with any easement for water rights or rights of way that had been previously acquired against such lands while they were in public ownership.
In 1873, the portion of the body of federal Mining Law applicable to rights-of-way for the construction of highways over public lands was separated from the historic context of the original Acts and reenacted as Revised Statute (R.S.) 2477. In 1938, it was recodified as 43 U.S.C. Section 932.2
Definition of a “Highway”
The dictionary defines a “highway” as a road or route to some end destination. The criteria for the conditions that constitute the establishment of a “highway” necessarily vary from era to era. As the original Indian and trapping trails were used and re-used, by foot, mule, horse and cattle, they compacted and became broader. As wagons passed over sod, the way became compacted in defined ruts. In many cases, very little preparation of the trail was preformed. The public simply established permanent passage as a highway and widened it through repeated use.
It was really not until the era of established communities that clearing and preparation of the path was required in order to accommodate the easy passage of freight wagons and stagecoaches to central points of commerce. These conditions continued as the general status quo well into the 20th century in many parts of the West. Most motor vehicle roads were not even started in the county until the late 1920s and many overlay earlier routes.2
In S. Utah Wilderness Alliance v. BLM (“SUWA”), 425 F.3d 735 (10th Cir. 2005), the Tenth Circuit offered this observation:
R.S. 2477 grants “the right of way for the construction of highways over public lands, not reserved for public uses.” At common law the term “highway” was a broad term encompassing all sorts of rights of way for public travel. In his magisterial Commentaries on American Law, Chancellor James Kent wrote that “Every thoroughfare which is used by the public, and is, in the language of the English books, ‘common to all the king’s subjects,’ is a highway, whether it be a carriage-way, a horse-way, a foot-way, or a navigable river.” James Kent, Commentaries on American Law 572-73, (10th ed. 1860).
25 American Jurisprudence Highways adds:
A highway is a way open to the public at large, for travel or transportation, without distinction, discrimination or restriction, except such as is incident to regulation calculated to secure the general public the largest practical benefit thereform and enjoyment thereof. Its prime esentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. It is the right of travel by all he world, and not the exercise of the right, which constitutes a way, a public highway, and the actual amount of travel upon it is not material. If it is open to all who desire to use it it is a public highway although it may accommodate only a limited portion of the public or even a single family, and although it accommodates some individuals more than others. (Section 2, Pages 339-340>
Adjudication of R.S. 2477 Claims
All of the R.S. 2477 rights-of-way in existence at the time of the Federal Land Policy and Management Act’s passage in 1976 were to be recognized. In contrast to the mining claims that require patent application, the federal government simply granted open-ended rights-of-way to the R.S. 2477 roads without any formal process to obtain federal recognition of these claims. Because these roads were open to any and all who wanted to use them, there had been no need to prove ownership of these routes against the federal government.3
The most relevant points of law related to R.S. 2477, as summarized by Busse (2016), are that:
- Valid public rights-of-way require an offer of the right-of-way by the grantor and acceptance of that offer by the public.
- For the period that it was in effect, R.S. 2477 was a standing offer by the federal government.
- Federal law governs R.S. 2477 claims, but acceptance by the public is determined by looking to state-law standards.
- Utah state law requires ten years of continuous public use for a right-of-way to be considered accepted.
- The burden of proof is on the R.S. 2477 claimant.
Public road creation statutes that may provide the basis for road creation under R.S. 2477 includes territorial statutes enacted prior to statehood (Meyer, 2021: 52). “In the territory of Utah, the statutes in force during the times in question were as follows: Chapter 29, Laws of Utah 1880 provided:
Sec. 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.
Sec. 3. Roads laid out and recorded as highways by the County Court, and all roads used as such for a period of five years, are highways.
By Chapter 12, Laws of [the Territory of] Utah 1886, it was enacted:
[Sec. 2] 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.”4
Chapter 12, Laws of the Territory of Utah 1886, Compiled Laws of Utah 1888 were incorporated in Title 30, Revised Statutes of Utah 1898, Compiled Laws of 1907 following Utah statehood in 1896.
1114. In all counties of this state, all roads, streets, alleys, lanes, courts, places, trails, and bridges laid out or erected as such by the public, or dedication or abandoned to the public, or made such in action for the partition of real property, are public highways.
1115. A highway shall be deemed to have been dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years.
Inferences of public use may be based on circumstantial evidence (Meyer, 2021: 20) and public use need only be by the public when use was necessary or convenient.
This public highway existed prior to the time that the Subject Parcel was patented in 1888 and the Private Parcels were patented between 1891 and 1897. Therefore, the owners of the Private Parcels acquired it from the government subject to the highway easement. Revised Statute 2477 was enacted as part of the Mining Act of 1866 and states simply that “the right-of-way for construction of highways over public lands, not reserved for public uses, is hereby granted.” R.S. 2477 “was a standing offer of a free right of way over the public domain.”[1] Congress repealed R.S. 2477 in 1976 with the enactment of the FLPMA, but preserved any R.S. 2477 rights-of-way that existed at the time.[2] The Tenth Circuit has succinctly explained this rule, holding that any R.S. 2477 rights-of-way in existence before the statute’s repeal are preserved with the statute effectively freezing R.S. 2477 rights as they were in 1976.[3]
In the case of Verdier v. Port Royal Rd. Co., 15 S.E. 476, it is held that under R.S. 2477 a grant of right of way is valid against subsequent conveyance by the government of land to a private person.
In Montgomery v. Sommers (Ore.) 90 Pac. 674, it is said:
The Act of Congress referred to by the court is an express dedication of a right of way, and an acceptance of the grant while the land is part of the public domain may be effected by public user alone, without any action on the part of the public highway authorities. When acceptance thereof has once been made the highway is legally established and thereafter a public easement upon the land and entrymen and claimants take subject to such easement.
A settler on public lands on which there is a road in common use as a highway takes subject to the public easement in such way, though it was never established by the public authorities under the general road laws. Van Wanning v. Deeter (Neb.) 110 N. W. 703; 112 N. W. 902.
The foregoing section of statute constitutes a grant in praesenti and when accepted by the public takes effect as of the date of the grant. The grant remains in abeyance until the highway is established and takes effect from that date. McAllister v. Okonogan Co. (Wash.) 100 Pac. 146; Stofferan V. Okonogan Co. (Wash.) 136 Pac. 484; Butte v. Mikosowitz (Mont.) 102 Pac. 593.
The rights granted by the United States Statutes cover and include, not only highways used as wagon roads, but also livestock trails, used by the general public for driving their flocks and herds from one range to another. Hatch Bros. v. Block (Wyo.) 165 Pac. 518; Bishop v. Hawley (Wash.) 238 Pac. 284; Montgomery V. Sommers (Ore.) 90 Pac. 674.
Creation of an R.S. 2477 right-of-way requires acceptance by the public under any road creation means in existence at the time. In this case, the 1880 or 1886 Laws of the Territory of Utah are the applicable means of road creation which require five years and ten years of public use respectively prior to the land being removed from the public domain.
Land is removed from the public domain on the date of patent.[4] The first Private Parcel was removed from the public domain on November 9, 1891, a month short of ten years after Old Quarry Road was first surveyed on December 11, 1881.
Additionally, removal of a parcel from the public domain under a portion of the right-of-way is not fatal to public use of the remaining portions of the road. While each parcel was removed from the public domain, any part of the road between it and the next parcel traveled by the subsequent patentee fell under R.S. 2477 in High Lonesome Ranch.[5]
R.S. 2477 RIGHT-OF-WAY: supported by direct evidence
The Right-of-Way was constructed at least five years, but no less than ten years, prior to the first Private Parcel being segregated from the public domain and maintained by continuous use for over 140 years after.
Abandonment
Public rights-of-way are vested property rights that cannot be eliminated or diminished without due process. However, the statutory grant of the rights-of-way did not require the issuance of an identifying record, such as a patent.5
A narrow exception allowing abandonment for non-use exists for roads which were on easements or by dedication and not by a purchased and deeded right-of-way, created prior to 1907, and abandoned before 1911, when a statute allowing for abandonment of public roads after five years of non-use was repealed. Mallory v. Taggart, 470 P.2d 254 (Utah 1970); North Temple Inv. Corp. v. Salt Lake City Corp., 489 P.2d 106 (Utah 1971); Henderson, 657 P.2d 1268. This old statute does not apply to roads created by plat or deeded right-of-way. Hall, 166 P.2d 221.
Even if abandoned by a local government entity, RS 2477 roads are still public roads until abandoned by the State Department of Transportation. See, U.C.A. 72-5-305. This is unique to state law and makes it impossible for cities and counties to completely vacate roads created on federal lands before statehood. When an attempt is made to abandon them locally, the public interest is vested entirely in the state, not in the underlying landowner (Call, 2012: 20-21)
[1] Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929).
[2] See 43 U.S.C. § 1701.
[3] Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir. 1988).
[4] “It is undisputed that a portion of the land traversed by the subject road became private property on October 13, 1881. That is the date the patent was issued on the so-called Home Station mining claim.” Stichting Mayflower Mountain Fonds v. United Park City Mines Co. 2017 UT 16 ¶ 30 (Utah 2017), “Since the evidence here points to the existence of the East Canyon Road under the Act of Congress of 1866 many years before patent of the appellant’s property first patented, there “was clearly such an acceptance by the public as, under the rules of the Lindsay Land & Livestock and Condas cases to constitute an appropriation to public use.” Jeremy v. Bertagnole 101 Utah 1, 116 P.2d 420, page 2-4, 25, 34 (Utah 1941), “Before the year 1894 the lands traversed by the road were unappropriated public lands of the United States. During the period of 1894 to 1904 the title to the lands passed from the federal government to the plaintiff or its grantors.” Lindsay Land & Live Stock Co. v. Churnos 75 Utah 384, 285 P. 646 (1929)
[5] High Lonesome Ranch, LLC v. Bd. of Cnty. Comm’rs for Garfield found an R.S. 2477 route was created between parcels as patentees traveled past each other’s land to reach their own.