THE NECESSITY FOR HISTORIC ROAD RESEARCH
Farms and ranches homesteaded in 1870-1920 in the Western States are being acquired by wealthy investors for private hunting or fishing clubs or gated compounds enclosing “trophy homes”. The investor relies upon a standard policy of title insurance for the strength, and enforceability, of his title believing, incorrectly, that if rights of travel are not recorded in the grantor-grantee index they are not enforceable against him. Such is the holding in City of Lakewood v. Mavromatis 817 P.2d. 90, 99 (Colo. 1991) (Road petitions not recorded in the grantor-grantee records are not record notice.) The ruling does not apply to circumstances involving Actual Notice or Inquiry Notice. (Fn. 22, Mavromatis) Blind reliance upon Mavromatis can thus become a trap for the unwary purchaser if not also the purchaser’s attorney who may not have conducted a proper search.
Courts have adopted three types of notice deemed applicable to land parcels. Martinez v. Affordable Housing Network 123 P.3d. 1201, 1206 (Colo. 205) Actual notice is as its name implies. If the landowner has direct, personal knowledge of an easement then he or she is charged with notice of that easement for all purposes. Constructive notice arises from documents recorded with a County Recorder. C.R.S. 38-35-109 All persons are charged with notice of all documents so recorded, regardless of whether a person has actually researched those records or found the record needed. (Id.) Inquiry notice arises when a party is presented with physical circumstances which would cause a reasonable person to investigate. The person is chargeable with all facts such a search would disclose, even if the search is not actually conducted.
Title policies are based on Constructive Notice and typically exclude from coverage those documents recorded with the County Recorder’s Office. These policies often exclude coverage for interests in land not shown in the public records. This would include adverse possession in which title to the possessed land transfers without the necessity of a deed or a court decree. Other policies exclude whatever interests or encumbrances might be disclosed by a professional land survey. This appears to refer to an ALTA survey, in which the surveyor must not only plat easements and provide their recording references but also must declare survey exceptions for apparent easements found on the land for which a corresponding recorded instrument is not known.
The grantor-grantee indices are listed chronologically by name of the parties. Without these names, the search can be cumbersome if not so daunting to use as to literally be unusable. The searcher must look in each year’s records to see who transferred the land. Some Recorder offices have done excellent jobs converting the chronological list to a tract basis by means of computer programs. This is similar to the “plant” in the title insurance industry. On a daily basis, one title company gathers all documents recorded that day with the Recorder. These documents are then inputted to the computer by section, township and range. The searcher enters section, township and range; finds a deed; and the computer program brings up all documents involved with that section. The searcher then retrieves the subject deed, and the computer program refers him to all subsequent deeds. In Utah, Recorders already maintain such “Tract Books” which are of inestimable value to the researcher.
Research on historic roads most often involves Inquiry Notice. Before purchasing, an interested party sees a land route on the property but his title commitment or ALTA survey does not identify its source authority. The title commitment refuses to insure that the purchaser would have any right of access to or from his property via the nearest public highway. The title commitment refuses to cover risks that a county road exists on the property. Worse yet, after purchase the owner, believing there are no public easements on his land, installs a gate across the road. The local Sheriff or District Attorney files a criminal complaint against him for barring travel over a public highway.
An historic road is a land route created between 1866 and 1976 over public or private lands under various state and federal legal authorities. These include:
R.S. 2477 Roads (Sec. 8, 1866 Mining Act; 43 U.S.C. 932; Repealed October 22, 1976) The federal government dedicated public lands “not reserved for public use” for the creation of highways. (Indian reservations; National Parks) The offer could be accepted by private persons or county governments, either by actual road construction or simply travel over the land. Some R.S. 2477 roads became state and federal highways: e.g., Colorado Highway 139, and U.S. 40 across Western Colorado. Nonetheless, there are numerous RS 2477 roads that remain public highways but not County Roads.
Petition Roads created by County Commissioners after petition by citizens to create roads over public or private lands. Sec. 2972, General Statutes (1883) The petitioners could be landowners residing within two miles of the requested route. The petitions could also be persons owning land on the requested route and, by statute, would then have to give a right-of-way to the county for the road. Road Viewers were appointed to confirm the practicability of the requested route and the amount of compensation to be paid to private landowners who might object to the route. The County Surveyor had to survey the approved route. Public hearings at each stage had to be held and the Sheriff had to post the route with notices of such hearings.
Prescriptive Public Easements are created by public travel over private land without consent by the landowner; openly in such manner as to notify the landowner of such travel; and for twenty consecutive years. C.R.S. 43-2-201(1)(c) After the 20 year period has elapsed, the public easement automatically comes into existence.
Dedicated Roads are similar to the R.S. 2477 roads but the land at issue is private land. The landowner sets aside a portion of his land for travel by the public. Often, this might be a road on the property that is not at issue between owners and users. The private owner’s dedication is accepted simply by the public’s travel over the road. Unlike prescriptive easements, there is no minimum time period of travel involved in this common law dedication.
Implied Roads is a relatively new recognition of old rights under Camfield v. United States 167 U.S. 518 (1897), and 43 U.S.C. 1061 and 1063 (1885). A parcel of land could be claimed by homestead or purchased by cash entry but travel over that parcel was still necessary to reach surrounding public lands that had yet to be homesteaded or purchased. The Supreme Court held that the federal government retained an implied easement over the sold or homestead land allowing the public to access adjacent lands in furtherance of the federal government’s policy to settle the American West.
The grantor-grantee index will not contain any reference to these roads and their authorities. Dedicated Roads, Prescriptive Public Easements and Implied Roads do not involve written records, as physical conduct alone was sufficient. Petition Roads had records, but those records were kept in a County Road Book that was separate from the Grantor-Grantee Records. The historic road researcher, then, is faced with a combination of actions. General Land Office surveys must be consulted to determine if, in these first surveys of the land, the surveyor noted the existence of trails or roads. Registrations for Entry under the 1863 Homestead Act must be consulted to determine the date of entry. Certificates of Entry (issued five years after proving up the homestead claim) must be reviewed to determine whether the claim was prove. Patents must be reviewed to verify the actual date when title passed from public to private ownership. Post-patent transfers of the land must be pulled and reviewed to determine whether private easements were given between adjoining landowners, which would evidence whether those landowners considered the road public or private. Assessor’s Abstracts must be examined to determine whether there was residency and agricultural activity on lands accessed by a road or trail shown on a GLO survey. Field inspections must be conducted to photo-document any actual constructions (e.g., bridge abutments, retaining walls or bench cuts). In some instances, Minutes of the Meetings of County Commissioners must be reviewed to determine whether a road has ever been vacated or altered by County action. Aerial photographs must be located to determine the presence or absence of the road. In some instances, autobiographies by original patentees may need to be consulted to find references to the creation, expansion or use of the road.
These activities are not performed by Title Insurance companies. They are performed by attorneys or historians having unique self-taught experience in developing a record of an historic road that will be accepted in a court of law, under application of strict rules of evidence and documents interpretation. In subsequent blogs, this website will discuss these various rules of evidence and the legal doctrines upon which roads were created that once settled the American west but which, by their continued existence, can unsettle the investor’s plans for property.