WHAT CONSTITUTES A “ROAD”?
November 25, 2023
© James Beckwith
I have occasionally been confronted in cross-examination by legal counsel insisting that there are legal differences between “trails” and “roads”. “RS 2477”, they argue, “requires a land route on which wagons and trucks may pass each other in opposing traffic – in other words, a road but not a trail”. Admittedly, a “trail” is a land route created by pedestrian or equestrian traffic moving in single file while a “road” is often considered a land route wide enough to accommodate a four-wheeled vehicle (wagon or truck). Nonetheless, I often cite to various legal authorities which do not support the attorney’s argument. Indeed, Colorado jurisprudence has been decidedly on my side of the issue.
The concept of a public highway was not limited to a land route traveled exclusively by wagons. Hale v. Sullivan 362 P.2d. 402, 405 (Colo. 1961) (The word “road” has a broad meaning and includes free public overland ways of every character even though not then envisioned by the framers of the Constitution, including trails and wagon roads.) Simon v. Pettit 687 P.2d. 1299, 1302 (Colo. 1984) (Hale stands for the principle that in certain circumstances a broad definition of “road” should be adopted.) Under R.S. 2477 (43 USC 932) a “highway” could include a bridle path, a wagon road or, even, a cattle drive area. Wilkerson v. Dept. of Interior, United States 634 F.Supp. 1265, 1272 (D. Colo. 1986)
“In Colorado, the term “highways” includes footpaths Simon v. Pettit 651 P.2d. 418,, 419 (Colo. App. 1982) aff’d 687 P.2d. 1299 (Colo. 1984) Highways under 43 U.S.C. 932 can also be roads “formed by the passage of wagons, etc., over the natural soil.” Central Pacific Railway Co. v. Alameda County 284 U.S. 463 (1932) The trails and wagon roads over the lands which became part of the Colorado National Monument were sufficient to be “highways” under 43 U.S.C. 932.”
Analysis of whether a land route over public land is a highway is, of course, governed by state, not federal, law. Nonetheless, the legal status of such roads was “frozen” when RS 2477 was repealed on October 21, 1976. Southern Utah Wilderness Alliance v. Bureau of Land Management 425 F.3d. 735, 741 (10th Cir., UT; 2005) citing Sierra Club v. Hodel 848 F.2d. 1068, 1081 (10th Cir. 1988) At least one state has held that the relevant state law is the law in effect when the offer of RS 2477 grants was withdrawn in October, 1976, and not by contemporary highway laws and regulations. Ahtna v. Department of Natural Resources 520 P.3d. 131, 139 (Alaska, 2022)
Colorado has always allowed an RS 2477 road to be a single user land route. Brown v. Jolley 387 P.2d. 278, 281 (Colo. 1963) (User is the requisite element and it may be by any who have occasion to travel over public lands; use by one is sufficient). There is an apparent current effort to “re-define” Congress’ intent in using the word “highway” in R.S. 2477. High Lonesome Ranch v. Bd. of Cty Comms’rs, Garfield County 61 F.4th 1225, 1245 (C.A. 10th, Colo. 2023) (Brown is too narrow as the term “highway” signifies a thoroughfare serving multiple users and locations over a period of time.) However, the basis for that 10th Circuit decision is its decision in a Utah case involving Utah statutes dealing with R.S. 2477. Colorado does not have the same statutes. Under Alaska’s ruling in Ahtna the 10th Circuit’s decision in High Lonesome Ranch would be irrelevant. As an RS 2477 road created prior to October 22, 1976, the public highway character is frozen without right of rescission or alteration by changes in judicial doctrines.
Colorado has never imposed a time requirement for the creation of an R.S. 2477 road. User and intent were the primary factors. Mining camps are but one example. If a land route was created by public passage (as opposed to actual construction) and the local miners intended the route to be a road or highway between their various claims, on the one hand, and, on the other hand, the local town where supplies could be obtained then the land route became, ipso facto, a highway on public land. Evidence of such communal intent was the public’s repeated travel over the same general route. Suspension by natural conditions (heavy winter snows; rock slides; avalanches; flooding) did not alter the legal status of the public road nor constitute an abandonment of the public road.
Land routes do, of course, follow a natural progression. First, there is the trail. With repeated travel the trail naturally widens and becomes a “single lane” route on which wagons can safely travel. Construction may widen the full length of the route or, as with Colorado toll roads, the road remains “single lane” with frequent “turn outs” or “side tracks” to accommodate opposing traffic. But Colorado’s acceptance of a route as a “road” has not been conditioned upon its width. Instead, the relevant factors have been traffic volume, end termini, and the need for the road in relation to the pattern of local settlement. Olga Little was a burro packer of great renown in the San Juan Mountains. Her “jack trains”, as they were called, imported to the mines and mining camps supplies including foods, hay bales and grains and exported from the mines ores for assaying and smelting at distant facilities. Her routes undoubtedly became the wagon roads traveled by heavy ore wagons and, later, motorized vehicles.
In sum, Colorado considers a “trail” as one of several land routes within the general, statutory classification of public highway.