What is a Public Road?

Research Is Key

Citizens of the United States of America cannot travel from the Gulf of Mexico to the Canadian Border or from the Pacific Ocean to the Atlantic Coast, without crossing private property on an easement granted by a private landowner to the public. So why then are the last few miles, yards, or in some cases the last few feet, to public land closed to the public? For decades, PLWA has been involved in gathering evidence to present to agencies and county officials relative to the right of way status of roads in Montana. When we hear of possible illegal closures, we work with reporting individuals to investigate records to determine the status of the road. In some instances we find that the road is not private, because:

• An easement is on record.

• It is a public road by the petitioning process.

• It is a road the county has maintained and the public has traveled for several years without asking permission

• There is a history of prescriptive use

• Its a public road based on Revised Statute 2477 (RS 2477), which is a law passed by Congress in 1867 granting easements for roads across “Public Domain”

The Public Land/Water Access Association does not create, own, buy or have any authority for a public right of way. If there are no records indicating a road is public, we have no authority to declare a road open, accept any responsibility for its maintenance, or compel law enforcement to take action. If the record search indicates a question as to the title of the road, we may gather the data and present it to the county to request a legal opinion on the evidence found.

GENERAL INFORMATION

If you encounter a closed road or trail and believe it to be legally accessible, here are some things you can do to investigate:

FIRST, is it in a National Forest? If so, check with the Regional Forester office to see if a private easement or fee title exists. If not, take your case to the Regional Forester. It could be a county road within the boundaries of the National forest. In that case you will have to deal with county authorities. Keep in mind the Forest Service does have the right and duty to manage a “travel plan” which allows for road closures.

SECOND, is the road within BLM boundaries? If so, check with the State BLM office in Billings, or the nearest Field Office to see if a private easement or fee title exists. If not, take your case through BLM channels. Here again, this could be a county road within the BLM boundary.

THIRD, is the road within Montana State land boundaries? If so, check with the nearest Montana Department of Natural Resources and Conservation office (“DNRC”) to check the status. State lands are accessible for recreational use. However, road use is usually restricted on those state lands leased for agricultural purposes.

FOURTH, is the road a private road or private subdivision road? You can determine if a particular road located within a subdivision is private or available for use by the public by examining land titles or subdivision plats located in county courthouses. Not all subdivision roads have been dedicated as county roads and subject to county control, BUT NOT ALL ROADS ACROSS PRIVATE LAND ARE CLOSED TO PUBLIC USE.

FIFTH, is it a county road? County roads are those established and usually maintained by a county. A county road is:

  • A road petitioned by “freeholders”, approved by resolution, and opened by a board of county commissioners;

  • A road dedicated for public use and approved by the Board of County Commissioners; or

  • A road acquired by “eminent domain.”

Counties cannot close roads without going through formal abandonment proceedings. County Roads which serve two or more residents cannot be abandoned without unanimous consent of all landowners as per State Law. County commissioners may direct county surveyors or public works departments to prepare suitable plat books. The plat books record a full description of each county road showing each course by bearing and distance, a full and complete map of the road, and a record of all proceedings with reference to the road. Unfortunately, many counties do not fully comply with this procedure and method of operation. Some petitioned roads may have missing segments because the petitioning process was never completed.

SIXTH, is it a road across private land which is legally accessible? There are a variety of laws and legal status which confer the right of use by the public. Among them are:

PUBLIC EASEMENTS: Easements – both private and public – can exist where no apparent road exists. Whatever the status, they are registered in the public county records. They may be old obliterated roads or uncompleted roads. A public easement must be legally and officially terminated or abandoned before the land control reverts back to the original landowner. Otherwise it remains a public right-of-way.

PRESCRIPTIVE EASEMENTS: Public roads and highways in Montana include those acquired by “adverse use” by the public, with jurisdiction having been assumed by the state or any political subdivision of the state. Many “public” roads originate as “prescriptive easements” established by the “antagonistic” use of a “way” by the public for a period of 5 to 7 years and then adjudicated as a public road. The width of prescriptive easements is dependent upon the historic use during the prescriptive period. If county/public funds were used to improve, construct, or maintain the road, the width of those public roads will usually be the “county roads’ standard of 60 ft.

“RS2477” ROADS: Some roads are qualified as public roads under Reserve Statute 2477 (RS2477), a repealed federal mining era law that states that any road/path across public land domain before patenting (under Homestead Act provisions) is a public road to be administered by the County. Many such roads exist through private property that was patented after the road was created. Although the Federal Land Policy and Management Act (FLPMA), adopted in 1976, repealed RS 2477, the provisions did not repeal rights-of-way granted under RS 2477. Public land managed by the BLM, US Forest Service, or other federal agencies generally do not qualify as RS 2477 roads unless they were constructed before the dedication of the public land. For example, Forest Service land was set aside in 1903, so FS roads do not qualify for RS2477 protection. The following two questions are key to determining if a road is a possible RS 2477:

1.) Was the road shown on the original survey plat?

2.) Did it predate the land patents (when the land left public domain)?

Land patents and original surveys can be found here. If the answer is “yes” to both questions, the road could very well be a public highway under RS 2477. RS2477 roads, when established, are a standard right of way width of 66 feet. Public roads that qualify by virtue of RS2477 must be declared as public by a public authority, such as County Commissioners or a court, before the public has access rights.

GAS TAX MAINTENANCE FUNDING: Public funds cannot be used to maintain a road not “open to public travel”. The State of Montana refunds gas-tax revenues to Montana counties based on public use of existing roadways and keeps records and maps of these “gas-tax” or “fuel-tax” roads. While all county and public roads are identified as fuel-tax roads on county’s maps submitted to the State, some roads included on these maps are neither public nor county roads. The county is still eligible to receive a fuel-tax refund because the road meets the requirements that it “not be posted against use” and can be navigated with a two-wheel drive vehicle. Because not all fuel-tax roads are public roads, the listing of a road on a fuel-tax map is not necessarily an indication that the road is public, but lends credible supporting evidence. Loss of the public use privileges on these roads results in their removal from gas-tax rolls.

By state law, public roads that lead to public lands or public waters cannot be abandoned unless an equivalent access is provided.

In conclusion, road law is obviously very complicated because of all the jurisdictions involved and the different historic uses. The above is provided as general information and not intended as actionable legal advice. Consult a law enforcement officer, the County Commission, a private attorney or County Attorney if you have any doubt about the law in a specific case. Although State and federal law codifies some aspects of road law, many cases can only be resolved in court.