Daily Development for
Friday, February 14, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

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 The Court found that, although repealed in 1976, RS 2477 governed this case since the claimed right-of-way would have existed at the date of repeal.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.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.