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Public Roads Access - The Road Less Traveled

Two roads diverged in a yellow wood,... and I - I took the one less traveled by, and that has made all the difference.
Robert Frost, The Road Not Taken

Robert Frost’s less-traveled road is a poet’s dream, but that same road may become a public nightmare when individuals seek to access it.  Has your grandparents’ choice of a little used or a well-worn route to their destination defined your travel options today?  What constitutes a highway, road or route?  Who decides what usage or travel is determinative of a road’s status?

Presented with a vast expanse of public lands in the nineteenth century, and a population ready to exploit its resources, the United States Congress crafted a series of laws to ensure availability of  those resources.  Over time, a rapidly expanding network of paths and roads spread across the countryside, easing public access to rich lodes of ore, timber, stock trails between pasture and market, mail deliveries, homesteads, communities, schools, and spectacular country for tourism and recreation.

The Lode Mining Act of 1866 included a provision to guarantee the public’s access to public lands, known as Revised Statute 2477 (RS2477).  In its entirety, the statute reads:

That the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.  (Originally Section 8 of the Act of July 26, 1866, 14 Stat. 253, later codified as 43 USC 932, RS2477)

This statute allowed public rights-of-way to be established on land held by the federal government but not reserved for a particular purpose.  County governments typically acted as trustees for the public, holding these rights-of-way.  State laws governed construction and maintenance of the public roads.  (43 CFR 244.55, 1939) 

RS2477 rights (referred to variously as 932 roads) established while land was still within the public domain remained with the land if it was subsequently reserved or withdrawn from the public domain.  The public was to be allowed free and unrestricted travel on these highways.

In 1976 the Federal Land Policy and Management Act (FLPMA) repealed and superceded RS2477. (Pub.L. No. 94-579, 90 Stat. 2793, 43 U.S.C. 1701)   FLPMA provided that RS2477 rights in existence in 1976 would be retained but ended the possibility of filing for any new RS2477 rights.  Title V of FLPMA provides a means by which roads can be designated as public highways from 1976 onward.  However, these right-of-way grants do not become perpetual property rights, as RS2477 grants did.  The rights-of-way are issued at the discretion of a federal land manager and function more as a usage license, in that they are not perpetual. 

Right of way access for individuals or the public at large to roads crossing private property can be acquired by an implied reservation easement, known as a prescriptive right, as well as by county condemnation proceedings.  State laws regulate the issuance of prescriptive rights.  The consistency or duration of road use, the purpose for which it was used, and the existence of an alternative route affect the courts' determination of a road’s status.

Both RS2477 and prescriptive easement law require documentation of specific historic issues to determine a road’s right-of-way status.   

What resources offer details on the historic use of roads and trails?  

  • Historic surveys of the land conducted by the Bureau of Land Management or its predecessor agency, the General Land Office, may note the existence of roads or trails.  Earlier exploratory surveys of western lands, conducted by engineers working for the U.S. War Department or transcontinental railroads, may also record traveled routes. 
  • Historic maps may identify a rural postal route, a schoolhouse, a homestead, a wagon trail, a packhorse trail, or offer some other indication of the public’s use of a particular passageway.  
  • Historic photographs may demonstrate use of an area, a road, or a trail, showing people using a particular route, or showing a landscape altered by people.
  • Historic county records may include road construction or maintenance reports, early county road maps or plats, road proclamations, closures, or vacations, and recordings of deeds, easements, or rights-of-way. 
  • Historic records of federal and state land-management agencies include a variety of project files, management files, atlases and inventories.
  • Recreation guides, local histories, local newspapers, and personal histories may describe individual or community use of roads or trails in an area.
  • Archival or personal/corporate records of entities using the land can include rights-of-way references or agreements and documentation of transportation routes.