Time: Mon Oct 28 16:50:06 1996
To: libertylaw@www.ultimate.org
From: Paul Andrew Mitchell [address in tool bar]
Subject: LLAW: Land Rights I
Cc:
Bcc:
<snip>
Now that you know where I am coming from as a
>private property rights advocate, let us not go there, shall
>we? I live and breathe this stuff and derive some respite from
>the ongoing daily battering by focussing on other underlying
>(legal & historical) perspectives on land and resource issues.:-)
>
>Marcia A.
Very well said, Marcia.
What are you thoughts
about the underlying
mechanisms which the NWO
is using to manipulate
land into their "possession"?
This is where I would become
very VERY interested.
/s/ Paul Mitchell
>
>PART I (I wrote this as part of our County Land/Resource Use Plan)
>
> TRANSPORTATION AND RIGHTS-OF-WAY
>BACKGROUND:
>In the debate over mineral legislation that occurred in Session
>I of the 39th Congress of 1866, Congressman George Julian of
>Indiana, then Chair of the Public Lands Committee of the House,
>favored subdivision and sale of mineral lands at auction to pay
>the war debt, with some vague restrictions to prevent monopoly
>and ensure ordinary claimants some opportunity to purchase the
>land.
>
>Senator William Stewart of Nevada, however, favored a
>ratification of the status quo, with additional inducement of
>giving the successful miner fee-simple title at a nominal
>price. He introduced a bill on the floor of the Senate
>stating; "All there is in this bill is a simple confirmation of
>the existing conditions of things in the mining regions,
>leaving everything where it was, endorsing the mining rules.
>It simply adopts and perfects the existing system allowing
>these people to enjoy their property without being subject to
>the fluctuation created now by agitations in Congress."
>
>The Senate passed the bill, but Congressman Julian buried it in
>his House committee. Stewart countered by amending the
>contents of a House passed bill on rights-of-way across public
>lands with his mining bill and pushed it through the Senate.
>It was returned to the House Committee on Mines and Mining
>instead of the Public Lands Committee and passed the House as
>the Act of July 26, 1866 (U.S. Statutes at Large, XIV, pgs.
>251-253. or "An Act granting the Right of Way to Ditch and
>Canal Owners over the Public Lands, and for other Purposes."
>
>The integration of Stewart's two original pieces of legislation
>on rights-of-way and mining into the Act of July 26, 1866,
>(also known as the "Lode Act",) provided a broad contextual
>basis for the Congressional recognition of the vesting of
>various possessory rights on public lands as had been obtained
>under local customs and laws.
>
>[A Supreme Court decision of 1879, Jennison v. Kirk (98 U.S.
>453, 457-459,) held that the object of the Act of 1866 "is to
>give sanction of the United States to possessory rights which
>had previously rested solely on local customs, laws and
>decisions." Because the statutes were silent, common law became
>the underpinning of the doctrine of possessory rights.
>
>In the same year, the Court under Broder v. Water Co. (101 U.S.
>274, 276,) the court ruled that the pre-existing possessory
>right dated back to the time of the formation of the state and
>were rights "the government had, by its conduct, recognized and
>encouraged and was bound to protect before the passage of the
>Act of 1866."
>
>Later in 1881, 8 P.C.L.J. 455 Re: Lux v. Haggin affirmed that
>the court had held that the Act of 1866 did not create any new
>right, but merely recognized and sanctioned preexisting rights.
>
>In Mohl v. Lamar Canal Co. (C.C. Colo. 128 F. 776 appeal
>dismissed 140 F. 988; 1904) the court affirmed that the Act of
>1866 did not create rights, but is a recognition by Congress of
>a preexisting right of possession and asserted that such rights
>constituted a valid claim to their continuance.]
>
>The Act of July 26, 1866, included provisions that "The right-
>of-way for the construction of highways over public lands, not
>reserved for public purposes, is hereby granted." (These
>provisions were later separated from the mineral and water use
>provisions as R.S. 2477.)
>
>In California, State law recognizes both informal prescriptive
>creation by customary use by the public and formal action by
>public authority as sufficient to constitute the acceptance of
>a right-of-way and dedication as a "public highway."
>
>[The grant of a right of way is self-executing. An R.S. 2477
>right of way comes into existence automatically when a public
>highway is established across public lands in accordance with
>the law of the state, [Standard Ventures, Inc. v. Arizona, 499
>F.2d , 9th Cir. (1974); Sierra Club v. Hodel, 848 F.2d, 10th
>Cir.; (1988.)]
>
>Whether a right of way has been established is a question of
>state law, [Standard Ventures, Inc. v. Arizona; Fisher v.
>Golden Valley Elec. Ass'n., Inc. 658 P.2d, Alaska;(1983) -
>citing United States v. Oklahoma Gas & Elec. Co. 328 U.S.;
>(1943.)]
>
>That the character of the use of the right of way was such as
>to constitute acceptance of the public of the statutory grant.
>(Hamerly 359 P.2d at 123.)
>
>The standard for conditions that establish a right of way
>include whether a trail has been frequented by public users for
>such a period of time and under such conditions as to prove
>that a public right of way has come into existence, (Hamerly;
>Dillingham 705 P.2d; Alaska Land Title 667 P.2d; Girves 536
>P.2d.)
>
>Continuous use is not a requirement. "Infrequent and sporadic"
>use is insufficient. "Regular" and "common" use by the public
>is necessary, [McGill v. Wahl, 839 P.2d, Alaska (1992);
>Hamerly; Kirk v. Schultz, 110 P.2d, Idaho (1941.)
>
>The test is what is "substantial" use under the circumstances.
>Courts must look to the circumstances as they existed at the
>time of establishment. The court noted that travel over a
>claimed R.S. 2477 right of way was irregular, but that was the nature
>of the country and to the fact that only a limited number of
>people had occasion to go that way, [Ball v. Stephens, 258
>P.2d, Cal. (1945.)
>
>The purpose of travel is irrelevant to R.S. 2477 (Ball;
>Dillingham.)
>
>To assert a public easement by prescription, the public need
>only act as if it were claiming a permanent right to the
>easement, [Swift v. Kniffen, 706 P.2d 296, Alaska (1985.)]
>
>Public prescriptive easements involve the public use, not
>possession of the land, [Jesse Dukeminier & James Krier,
>Property 850 2d ed. (1988); See also Dillingham for a
>discussion of the distinction between use and possession.)
>
>The law recognizes that routes may evolve. There is no
>requirement that the historic route and its current location
>coincide exactly. Where parts of an historic road or trail are
>obliterated by another more modern highway, or are destroyed by
>natural forces, the right of way is not obliterated or
>destroyed, (Ball;)
>
>In Ball v. Stephens, 158 P. 2d 207 (Cal. Ct. App. 1945), citing
>Pol. Code Section 2618 as reenacted in 1883 and in force until
>1935, established that "Acceptance of the offer of the
>government could be manifested and dedication could be effected
>by selection of a route and its establishment as a highway by
>public authority. Dedication could also be effected without
>action by the state or county, by the laying out of a road and
>its use by the public sufficient in law to constitute
>acceptance by the public of an offer of dedication. In order
>that a road should become a public highway, it must be
>established in accordance with the law of the state in which it
>is located."
>
>[(SEE also: McRose v. Bottyer, 22 P. 393, Cal. 1989; Bequette
>v. Patterson, 37 P.917, Cal. 1894; Schwerdtle v. Placer County,
>41 P.448, Cal. 1895 - citing St. 1870, p.457; Sutton v.
>Nicholaisen, 44 P. 805, Cal. 1896 - citing Pol. Code Section
>2619, enacted 1873, amended by Act of March 30, 1874, repealed
>1883; Town of Red Bluff v. Walbridge, 116 P. 77, Cal. Ct. App.
>1911; People v. Quong Sing, 127 P. 1052, Cal. Ct. App. 1912 -
>citing Pol. Code Section 2619; Central Pacific Ry. Co. v.
>Alameda, 299 P. 77, Cal. 1931; Ball v. Stephens, 158 P.2d 207,
>Cal. Ct. App. 1945 - citing Pol. Code Section 2618 as reenacted
>in 1883 and in force until 1935.)
>
>Several cases have affirmed this transfer to the State of
>proprietary jurisdiction over rights-of-way: In Colorado v.
>Toll, 268 U.S. 278, (1925,) the Park Service tried to assert
>exclusive control over the roads within the Park. The Supreme
>Court held that the creation of Rocky Mountain National Park
>did not take jurisdiction away from the State of Colorado over
>existing roads within the Park. In Wilkinson v. Department of
>the Interior, 634 F. Supp. 1265, D. Colo, (1986,) the case
>involved a road that entered and then exited the Colorado
>National Monument. The Court held that the Park Service could
>not charge an entrance fee for those using the road through the
>Monument because this was an invalid restriction on the right-
>of-way. An attempt to prohibit all commercial traffic was also
>determined to be contrary to the right-of-way. In U.S. v.
>Jenks, 804 F. Supp. 232 - D.N.M., (1992,) the court again found
>that the issue of whether an R.S. 2477 right-of-way has been
>established is a question of State law.]
>
>It should be specially noted that according to California law,
>the "public" may manifest acceptance of the U.S. offer of a
>right-of-way over public lands just by laying out a road and
>using it. The process requires no action by the state or
>county.
>
>In 1870, under the "Placer Act" or U.S. Mining Law amended July
>9, 1870, (vol. 16 Statutes at Large p. 217; U.S.C. vol 30,
>section 35,) Congress also clarified that it was its intent
>that the water rights and rights-of-way to which the 1866
>legislation related were effective not only against the United
>States but also against its grantees; that anyone who took
>title to public lands took such title burdened with any
>easement for water rights or rights of way that had been
>previously acquired against such lands while they were in
>public ownership.
>
>In 1873, the portion of the body of federal Mining Law
>applicable to rights-of-way for the construction of highways
>over public lands was separated from the historic context of
>the original Acts and reenacted as Revised Statute (R.S.) 2477.
>In 1938, it was recodified as 43 U.S.C. Section 932).
>
>[In 1891, a Congressional Act also separated the rights-of-way
>for canals and ditches from the mining law, establishing limits
>on reservoirs, ditches and canals over public land to the
>ground occupied by the water plus 50 feet on either side and
>establishes the right to take earth and stone for necessary
>construction from adjacent public land.]
>
>The Mining Law of 1866 applied the free-access principle to
>"all mineral lands of the public domain." The 1872 Mining Law
>changed this to "all valuable mineral deposits in lands
>belonging to the United States." In numerous cases decided
>both before and after the period 1866-1872, the courts had held
>that the "public domain" embraced only lands available for
>disposal under the various disposal laws - that is, those areas
>not withdrawn from disposal and reserved by the federal
>government for other uses. [See Oklahoma v. Texas, 258 U.S.
>574, 599-600; (1922)]
>
>In Siskiyou County, the Modoc National Forest was created on
>Nov. 29, 1904. The Klamath National Forest was, in large part,
>created on May 6, 1905; the Trinity National Forest on April
>26, 1905; the Shasta National Forest on October 3, 1905; the
>Upper Klamath Wildlife Refuge on April 3, 1928 (with additions
>on Feb. 26, 1954); the Lower Klamath Wildlife Refuge on Aug. 8,
>1908 (with reductions on May 14, 1915 and March 28, 1921); Lava
>Beds National Monument in 1925 (transferred to National Park
>status in 1933); and the Tule Lake National Wildlife Refuge was
>created Oct. 4, 1928 (enlarged in 1932 and 1936 and reduced in
>1942.)
>
>
>
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