The stories below are examples of the controversies currently existing
regarding access over lands that, while once public, are now private property.
The Smith Ranch, Kane County, Utah
Jana and Ron Smith own a ranch in Kane County outside Kanab, Utah.
Purchased more than 25 years ago, the Smiths had no idea there was a "highway"
cutting through their property. Arriving home one day in 1997, the Smith's
found that the county attorney had cut chains off gates and removed 'Private
Property' signs posted on their land. The reason for this trespass was
there was a RS 2477 right-of-way across the property and the county was
asserting its right to this "highway." The Smiths tried to work within the
county system avoiding the courts to resolve the controversy surrounding their
property. For 2 1/2 years the Smiths dealt with hunters, ORV users, and
others becoming angry with gates and signs which they ignored and tore down.
In 1999 Kane County ran a road grader through the Smith property. At
that point it became clear to the Smith's that working within the county system
was not going to prevent the county from establishing and using this
right-of-way being claimed under RS 2477. The Smiths hired an attorney and
took the issue to court. In 2000, the courts permanently stopped the RS
2477 claimants and awarded the Smiths all rights and title to their property.
The Smith Ranch
RS 2477 "highway."
Platt Family Retirement Property
Following publication of an op-ed story in the Salt Lake Tribune about
the Smiths in Kane County, Utah, Ken Platt wrote a letter to the editor
telling his story.
The Platts bought property in Utah's San Juan County. The property was
purchased in 1997 as a future site for a retirement home. When visiting
the property in 2002, the Platts noticed that a track crossing their property
had been used by ORVs, even though the property is gated and posted.
Inspection of the gate showed that it had been removed from it's hinges and then
replaced. When the Platts closed on the property purchase in 1997 there
was no information recorded on the deed or with any authority that there was a
right-of-way crossing the parcel. Later, the county claimed this track as
a Class D road, apparently, the county is asserting an RS 2477 claim.
The Platts now face the formidable task of trying to reclaim their property
and enjoy their retirement. The difficulty the Platts will face is the lack of a
process outside of litigation to allow them to control access to their property.
The issues are compounded by the fact that Utah and the Department of Interior
signed a Memorandum of Understanding regarding R.S. 2477 claims. This MOU
does not include private property owners -- though they are definitely
impacted.
The Chamberlin Family Home Boulder County,
Colorado
In the late 1990s, Ms. AJ Chamberlin purchased a vacant lot in the
mountains. The land purchased was not subject to any easements or recorded
rights-of-way. Later, Ms. Chamberlin and her family built their home on the
land and live there year-round.
To the family's surprise, some recreation users claim that a 19th century
mining path runs through the property, and that under RS 2477 the public has a
right to use it. These users have ignored "No Trespassing" signs on the Chamberlins' property and illegally cross the land at all times of the day.
They have torn down and defaced property. These trespassing activities have
prevented the Chamberlins from enjoying their home and reduced the economic
value of the property.
Neighbors in the area have also suffered abuse for restricting access across
their private land: Trespassers have smashed car windows and killed one
neighbor's dog.
Read AJ's story as told to a Colorado Senate subcommittee during a hearing on
the Senate's resolution regarding rights-of-way.
Testimony
Western Colorado Landowners Uncertain
Regarding Purpose of RS 2477 Claim
A. Patrice Schell owns property near Cedaredge, Colorado. Schell and several
other property owners in the area have been named in a lawsuit claiming that
their driveways are public highways under RS 2477. The lawsuit was filed
by another landowner. Since RS 2477 is a federal statute, currently, this
issue can only be resolved by going to court. Most of the parties named in the
suit do not have the funds available to see this issue through the court system.
The reasons for seeking the public highway designation under RS 2477 are not
known to those named in the suit. The property owners along this potential
right-of-way will be negatively impacted due to the likely increase in traffic
on their driveways if the RS 2477 claim is determined valid. The cost to
maintain the current driveways is sure to increase with increased traffic and
the potential for additional lawsuits related to liability looms as well.
The landowner making the claim may also be negatively impacted since as a
right-of-way under RS 2477 there is no mechanism for restricting the type or
amount of public access, and it is expected that the right-of-way would extend
across all the properties involved.
The Recommendations page describes the
position POSRP is advocating to protect the rights of property owners in these
situations.
Elrick-Boslough Ranch,
Boulder County, Colorado
Maya Elrick's family has owned a ranch next to Balarat Creek for more than 40
years. Over the last decade, her husband Mark Boslough purchased a number of
patented mining claims along the creek. A 1.5 mile pedestrian trail (known as
Barking Dog Trail) followed the route of a private drive that had been build
with private funds across the private property by a previous owner. The
Bosloughs invited hikers across the property, but posted signs to keep motorized
vehicles out. The trail was never shown on any maps and there is no recorded
easement or right-of-way for a public highway at the trail-site.
In the 1990s, organized jeep clubs began trespassing. These groups drove
through the creek, destroyed vegetation and dumped oil into the stream. The
off-road vehicle users claim that their violation of private property is
justified because the Barking Dog Trail is a public highway under RS 2477.
A group
trespassing on the Elrick-Boslough Ranch.
Learn more about the
Elrick-Boslough ranch and efforts to stop unauthorized access to the
property.
Access Dispute Results in Charges
Darwin Floyd is trying to stop trespassers across his property in Teller
County. Parties are seeking access across the Floyd property on trails
they consider public right-of-ways under RS 2477. This case has resulted
in criminal proceedings. The links below provide you with the story.
Links are listed oldest to newest.
- Rules of the
road
- Officers
accused
- Road rage
- Judge Acquits
Property Owner
Owner Protects Home Through Land Purchase
Dr. Susanna Hoffman bought several old mining claims adjacent to the San Juan
National Forest near Dolores in 1996. She used this property to
build a cabin that is now her home. At the time she bought the property,
the sellers did not retain any easements across the property. There were
no recorded easements in the local land office. Within nine months of
buying the property, the sellers asked to bulldoze a road along an invisible
trail they claimed has once existed to a parcel they had kept on the mountain
above Hoffman's property. Because there was another access to the
property, Hoffman did not agree to a road across her property.
Without Hoffman's permission or consent, a 16 to 100 foot wide road was
bulldozed across the Hoffman property and on the Forest Service land. The
parties bulldozing the road claimed they were "maintaining" a "constructed
highway" under RS 2477.
While there was no recorded road or obvious visible evidence that a road
existed prior to the bulldozing activity, Hoffman was forced to go to court over
the issue. After spending thousands on legal fees, Hoffman finally bought
the additional parcel to prevent further damage and continued access across her
land.
Do you have a story of trespass across private land or abuse of access across
public land justified by claiming a right-of-way under RS 2477? Let us hear
about it and we will consider posting it for others to know.
stories@posrp.org
POSRP Contact Information
- Telephone
- 303-588-8999
- Postal address
- POSRP
- 2425 Canyon Blvd. #110, Boulder CO 80303
- Electronic mail
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questions@posrp.org
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