ALTERATIONS TO THE R.S. 2477 EASEMENT
Many people ask me whether an R.S. 2477 road, created in the last 1800’s, is restricted to the width, course and use that created it. For example, if a single lane track was created by 6 ft. wide ore wagons moving mined ore is the road forever limited to a 6 ft. width for ore transport over the original course. Instead, could the road be widened and improved to allow opposing vehicles to pass each other? The answer is quite simple. An R.S. 2477 road is just like any other road created by legislative act. It can be widened and improved to accommodate new and additional traffic not only before October 22, 1976 (when R.S. 2477 was repealed) but after that date as well.
The most famous example is Utah’s Burr Trail connecting Boulder, UT with the Bullfrog Basin Marina in Lake Powell. The Trail was created in the late 1800’s to move sheep, cattle and horses to market. In 1918 the road began accommodating heavy trucks and equipment for oil exploration (which it still does today). Since 1930, the Trail has had several purposes including emergency, mineral, agricultural, economic development and, in my own instance, tourist sightseeing. The Trail traverses unreserved federal land as well as wilderness study areas and at least one national park. In the 1980’s, after repeal of R.S. 2477, Garfield County official sought to widen the western 28 miles of the Trail from a one land dirt road to an improved two lane graveled road. Federal agencies and others objected, asserting the Trail was “frozen in time” to October 22, 1976 and forever restricted to one lane.
In Sierra Club v. Hodel 848 F.2d. 1068 (10th CCA, 1988), the court upheld the County’s right to improve the Trail on a two-prong basis. First, the court held that “…the baseline is the historical extent of use, i.e., the beaten path both as it is now and once existed…”. (848 F.2d. at Pgs. 1079-80) This acknowledged that a narrow R.S. 2477 right-of-way could legitimately become a wider right-of-way. Indeed, see Fn 9, Hodel 848 F.2d. at Pg. 1079, wherein the 10th Circuit stated:
“The ‘scope’ of a right-of-way refers to the bundle of property rights possessed by the holder of the right-of-way. This bundle is defined by the physical boundaries of the right-of-way as well as the uses to which it has been put.”
Second, the court allowed deviations from the beaten path when such deviation is deemed “reasonable and necessary to meet the exigencies of increased travel” under governing state law. (848 F.2d. at Pg. 1079-80)
The 10th Circuit went on to consider the width of the ROW. In 1987, the Utah legislature had declared by statute that RS 2477 ROW’s were 100 ft. in width. The 10th Circuit, however, found that Utah law prior to 1976 had not statutorily determined the width of the ROW. (848 F.2d. at Pg. 1083) The court then adopted Utah state court decisions which defined the width of the ROW – in the absence of statutory prescription – to that “…which is reasonable and necessary for the type of use to which the road has been put….”. Lindsay Land & Live Stock Co. v. Churnos 75 Utah 384, 285 P. 646, 649 (1929); Whitesides v. Green 13 Utah 341, 44 P. 1032 (1896). The 10th Circuit then held:
“Thus, the scope of Garfield County’s right-of-way is that which is reasonable and necessary to ensure safe travel for the uses above-mentioned, including improving the road to two lanes so travelers could pass each other.” (848 F.2d. at Pg. 1084) (Emphasis Supplied)
The 10th Circuit’s reference to “…the uses above-mentioned…” was its discussion of the scope of use, under easement law. The 10th Circuit noted a Congressional “policy” of “…freezing rights of way at their October 21, 1976 width….” (Emphasis Supplied) (848 F.2d. at Pg. 1081) The Court further distinguished between “…what was necessary to perfect an RS 2477 ROW..(from)..the scope of such a right once perfected….”. (848 F.2d. at Pg. 1081) The 10th Circuit then held:
“Applying the ‘reasonable and necessary’ standard in light of traditional uses does not mean, however, that the County’s right-of-way is limited to the uses to which the Burr Trail was being put when it first became an RS 2477 road…Because the grantor, the federal government, was never required to ratify a use on an RS 2477 right-of-way, each new use of the Burr Trail automatically vested as an incident of the easement. Thus, all uses before October 21, 1976, not terminated or surrendered, are part of an RS 2477 right-of-way….”. (848 F.2d. at Pg. 1084)
In 2006, the 10th Circuit again revisited Hodel and RS 2477 ROW’s. In Southern Utah Wilderness Alliance v. BLM 425 F.3d. 735 (2006), the 10th Circuit expanded its rulings made in Hodel. The width, types of uses and relations between landowner (BLM/USFS) and ROW holder (County) were to be measured by the common law of easements: determined from state law decisions by the courts in which the ROW was located. The 10th Circuit again dichotomized between “maintenance” and “improvement”, holding that the former did not require any notice to the federal agency while the latter required notice to the agency although the agency could not require a FLPMA permit because it lacked primary jurisdiction over the RS 2477 ROW. As relevant to the present inquiry, the 10th Circuit held that:
To convert a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the use, affects the servient estate, and may go beyond the scope of the right of way. [citing Hodel at Pg. 1083, and Jeremy v. Leo Bertagnole 101 Utah 1, 116 P.2d. 420, 424 (1941) …This does not mean that no changes can ever be made, but that any improvements must be made in light of the traditional uses to which the right of way had been put, fixed as of October 21, 1976…The counties are correct that, under Hodel, the right-of-way holder may sometimes be entitled to change the character of the roadway when needed to accommodate traditional uses, but even legitimate changes in the character of the roadway require consultation when those changes go beyond routine maintenance. Just because a proposed change falls within the scope of a right of way does not mean that it can be undertaken unilaterally…”. (SUWA 425 F.3d. at Pg. 747-748)
Utah law was the law applied in Hodel, SUWA, and United States v. Garfield County, UT 122 F.Supp.2d. 1201 (D. Utah, 2000) Here we are concerned with Colorado. Does Colorado have similar laws to Utah as cited in Hodel? Yes, it does.
For roads established by use, and not by legislative proclamation, the width is that width established by public use: i.e., the traveled surface. Goerke v. Town of Manitou 25 Colo. App. 482, 139 P. 1049 (1914); Board of County Commissioners of Delta County v. Ogburn 554 P.2d. 700 (Colo. App. 1976). However, in Goluba v. Griffith 830 P.2d. 1090, 1091 (Colo. App. 1991), the Court announced:
“…a highway’s width is not limited to the actual beaten path but extends to such width as is reasonably necessary to accommodate the established public use.”
Once a road is a public highway, it is open for any and all uses desired by the public. Lavvorn v. Salisbury 701 P.2d. 142, 144 (1985) Lavvorn and Goluba, taken together, strongly suggest that Colorado would agree with the holding in Whitesides (Supra): “…(roads) should be wide enough to allow travelers to pass each other.” [44 P. at Pg. 1033) Roads established by legislative authority, however, are treated differently. The ROW is as wide as specified by the legislative authority (e.g., BOCC) or by a governing statute. Goerke v. Town of Manitou (Supra) If the traveled surface is less than the ROW width, then the unused width remains a part of the public highway, unabandoned by non-use. Board of County Commissioners of Mesa County v. Wilcox 35 Colo. App. 215, 533 P.2d. 50, 52 (1975) citing Uhl. v. McEndaffer 123 Colo. 69, 225 P.2d. 839, 840 (1950) (full width of highway as specified by County Commissioners remains in force until abandoned or vacated by said Commissioners) and; Crane v. Beck 133 Colo. 325, 295 P.2d. 222, 223-224 (1956)
Added to this list of Colorado decisions must be Barnard v. Gaumer 146 Colo. 409, 361 P.2d. 778 (1961) (The rights of one holding an easement in the land of another are measured by the nature and purpose of the easement, citing DeReus v. Peck 114 Colo. 107, 162 P.2d. 404) As held in Lavvorn (Supra) a public highway is open to any and all legal uses of a roadway. Limiting that road to only one-lane, and specific size or weights of vehicles, would thwart the very purpose of the easement. In Skidmore v. First Bank of Minneapolis 773 P.2d. 587, 589 (Colo. App. 1988), the Court of Appeals held that the holder of the servient estate (landowner) may not unreasonably interfere with the superior rights of the person owning the easement. Conversely, “…the owner of the easement, or dominant estate, may do whatever is reasonably necessary to permit full use and enjoyment of the easement…”. Osborn & Caywood Ditch Co. v. Green 673 P.2d. 380, 383 (Colo. App. 1983). SEE ALSO: Shrull v. Rapasardi 33 Colo. App. 148, 517 P.2d. 860, 862 (Colo. App. 1973)
Further research simply confirms what is quoted above. In Lazy Dog Ranch v. Telluray Ranch Corporation 965 P.2d. 1229 (Colo. 1998), (“Lazy Dog III”) the Supreme Court was pulled into the “Lazy Dog Trilogy”, involving a private easement over Lazy Dog Ranch which was necessary to reach the Telluray Ranch. In Lazy Dog I (923 P.2d. 313 (Colo. App. 1996)), the Court of Appeals had held that the easement was 60 ft. wide. However, it did not specifically decide as to the uses to which the easement could be put. In Lazy Dog II [948 P.2d. 74 (Colo. App. 1997)], the Court of Appeals affirmed a summary judgment by the trial court. Both the trial court and the Court of Appeals believed that the dimensions of an easement were identical to the use of the easement. In Lazy Dog III, (965 P.2d. 1229) the Supreme Court disagreed. Citing several decisions by Colorado and other western state courts dealing with the scope of use vs. width distinction, the court held:
“…it is clear that the litigation in Telluray I (Lazy Dog I) resolved only the easement’s existence, width and purpose for access and utilities. The precise extent of the parties’ rights to use the easement was not actually litigated or determined in Telluray I. Nor was the propriety of Telluray’s present proposal (to widen the road to 30 ft traveled surface) an issue in the prior proceeding. Accordingly, Lazy Dog’s present claims are not barred by collateral estoppel…”. (965 P.2d, at Pg. 1240)
Stated more simply, Lazy Dog III distinguished width and existence of an easement from the use and improvement of that easement. (965 P.2d. at Pg. 1239) As to the balance of rights between the landowner and the easement holder, the court stated:
“Unless the intentions of the parties are determined to require a different result, the owner of the servient estate may make any use of the burdened property that does not unreasonably interfere with the enjoyment of the easement by its owner for its intended purpose. See Bijou Irrig. Dist. 804 P.2d. at 183; Title Guar. Co. v. Harmer 163 Colo 278, 281, 430 P.2d. 78, 80 (1967); Hornsilver Circle, Ltd. 904 P.2d. at 1357; Restatement (Third) of Property, §4.0. Conversely, the owner of the easement may make any use of the easement (including maintenance and improvement) that is reasonably necessary to the enjoyment of the easement, and which does not cause unreasonable damage to the servient estate or unreasonably interfere with the enjoyment of the servient estate. See Bijou Irrig. Dist. 804 P.2d. at 183; Knudson v. Frost 56 Colo. 530, 535, 139 P. 533, 535 (1914); Restatement (Third) of Property §4.10; 3 Herbert Tiffany, The Law of Real Property §810, at 347 (Jones ed. 1939) [965 P.2d. at Pg. 1238] (Emphasis Supplied)
The Western states (where the bulk of R.S. 2477 issues arise) largely fall within the Ninth and Tenth Circuit Courts of Appeal. Any litigator of RS 2477 ROW’s must be aware of the philosophic differences between these two federal circuits. An excellent discussion is provided in Federal Regulation of R.S. 2477 Rights-of-Way, (Mr. Matthew Squires; NYU Annual Survey of American Law, 2007-2008 Pgs. 547-590) As discussed by Mr. Squires the 10th Circuit has adopted a “proprietary” approach to RS 2477, wherein the federal government is a landowner having equal status with all other landowners. Rights and duties of easements are, therefore, resolved pursuant to Easement law. By contrast, the 9th Circuit has adopted a “legislative” approach, founded upon the Property Clause of the U.S. Constitution. Under this approach, the federal government’s interests in protecting federal lands pre-empt the rights of state or county governments to keep roads open across federal lands when the interests of federal and state are in conflict. Mr. Squires acknowledges that the two approaches generally arrive at the same conclusions, though the process of getting to those conclusions may vary.
Those seeking to restrict or limit the scope of R.S. 2477 rights-of-way often use the phrases “Scope of Disturbance” and Scope of Traditional Use”. Each of these phrases seek to prevent expansion of the R.S. 2477 right-of-way and to prevent accommodation of new and increased traffic over that right-of-way. As discussed in this essay, however, neither of these phrases are a federal judicial concept nor a state law concept applicable to statutorily dedicated, public rights-of-way. Both Hodel and SUWA are unambiguous on that point. The 10th Circuit has applied the common law of Easement to allow local governments, as owners of the RS 2477 ROW, to widen roads and to change their course as allowed in both Hodel and SUWA. Under governing Colorado decisions, the RS 2477 ROW holder is allowed to improve and widen the road, so long as there is not “unreasonable” interference with the landowner’s privileges.
The discussion of what constitutes “unreasonable interference” must be left for another essay.
James A. Beckwith
© Copyright James A. Beckwith (2014; 2021)