Because, in the late 1800s, the public used a route across what was public domain at the time, that route may be established as a public right of way in the present, according to federal statute R.S. 2477. With no living witnesses from that era, proving such use can be challenging—but it can be done.
Robinson Tweedy recently won a case in Delta County, securing access for our clients across an historic public road dating back to the late 1800s. The Plaintiffs had been denied access to their grazing land Oak Mesa via the historic “Road to Paonia.” Their neighbors had locked several gates across the road which had served a ditch company and various homestead parcels beginning in 1905. Through maps, homestead records, survey analysis, photographs and expert witness testimony, Robinson Tweedy successfully proved that the road was established and used by the public long before the land traversed by the road had been removed from the public domain.
An old law, generally known as “R.S. 2477,” was enacted in the 1860s when the federal government was encouraging settlement of the west through mining, grazing and agriculture. Prior to its repeal in 1976, R.S. 2477 allowed members of the public to establish a public right-of-way over public lands in order to access their homesteads. Thus, even 100 years later, the current landowners whose property is traversed by the road, do not have a right to lock gates across these historic roads. In finding for our clients, the District Court found the Road to Paonia to be a public road under R.S. 2477 and related state statutes, enjoining the offending landowners from obstructing the road in any way, and ordering them to remove the gates they had constructed across the road.