Road Law Blog
CONFLICTING PRESUMPTIONS Adverse Use and Permissive Use
In cases involving historic roads, the parties and the court are often confronted with large time periods during which the public traveled over the land route at issue. The surface character of the road and its appearance may clearly and unquestionably indicate continuous travel over its surface by vehicles of one form or another. Yet, all persons who traveled the road. and predecessors in title to the servient estate, are dead and unavailable to testify as to permissive or adverse use. Read more…
REMOVAL OF LAND FROM THE PUBLIC DOMAIN
An important and critical step in the analysis of an RS 2477 roadway is whether the public lands have, or have not, been removed from the public domain prior to the time the land route was created. RS 2477 only applies to public lands that have not been removed from the public domain. State court decisions on this issue are not helpful, as they do not cite any legal authority for their rulings. Since the public lands are lands owned by the U.S. government, then federal, not state, decisions control on this issue. A review of federal decisions was made in the context of mining claims under the Mining Act of 1872, and the Colorado Mining Law. The conclusion is clear. Until a U.S. Patent is issued for a mining lode, the U.S. government continues to own the land within the mining claim. The mining claim is not removed from the public domain until the Patent is issued…
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…