by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; CREATION; IMPLICATION; PUBLIC LANDS: Public right-of-way exists across private land where, prior to privatization of the land, regular use by the public of a trail across the land for hunting and travel to neighboring mining claims evidenced acceptance of a highway grant across the land under former 43 U.S.C.  932 (RS 2477), which provided that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

Fitzgerald v. Puddicombe, 918 P.2d 1017 (Alaska 1996).

A landowner sued his neighbor, claiming a right of access over the neighbor's property pursuant to RS 2477. The Court found that, although repealed in 1976, RS 2477 governed this case since the claimed right-of-way would have existed at the date of repeal. The Court further held that, to accept the grant of a way under RS 2477, there must have been some positive act on the part of the state, or a public use indicating the grant was accepted. However, while use indicating acceptance of the grant could not be "infrequent or sporadic," continuous use is not required, the route used need not be significantly developed to qualify as a "highway" (even a rudimentary trail can qualify) and it is not necessary that the precise path of the trail be proven, only that there was a generally-followed route across the land in question.

Comment: This case obviously is of great significance in areas of the country where there is substantial public land subjected to recreational useage and later transferred into private ownership. It will be of particular interest with regard to federal grazing and forest lands that, depending upon the federal administration, have been prime candidates for "repatriation" to the private sector.

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