The Elbert County tribune., 1913-06-06
LAYLIN MAKES RULING
PERMANENT RIGHTS FOR HIGH,
WAYS ACROSS PUBLIC LANDS.
States Already Possess Easements for
Construction of Roads on Public
Lands Not Reserved.

Washington. In an important
ruling. made at the request of Con-
gressman e. T. Taylor of Colorado,
the Department of the Interior last
week gave assurance that highways
across tract of public land which have
become established through usage may
be held permanent rights of way by
states or counties adopting them. In
letter to Taylor. Assistant Secretary
OF the Interior Laylin says the states
already possess easements for the con-
struction of highways over public
lands not reserved for public uses.
and unless 1t is deemed advisable to
secure an easement or right OF way
prior to construction and use, or to
have such rights of way noted upon
the records of the local or general
land offices, additional legislation by
congress is unnecessary.
The coming activity of the, state
Highway Commission in Colorado
makes the information extremely i'm
portant. for there will be many in
stances, here and there in the state,
where 1t will be found desirable to
straighten and repair long stretches of
road which leads across lands still
owned by the government Unless
there is assurance that the state IL
to have title to these highways after
they are rebuilt. and that they are
not to be seized and included in the
holdings OF coming settlers, there will
be naturally some diffidence on the
part of the Highway Commission as
to proceeding with permanent works.
"a query of this nature having been re-
ceived from Charles w. Taylor, coun-
ty attorney OF Garfield county, Con-
gressman Taylor at once recognized
the gravity of the question and pro-
ceeded to lay it before the Interior De-
partment The reply of Assistant
Secretary Laylin is recognized as Of
ficial in character. Section 2477 OF
the Revised Statutes is pointed out
as carrying the authority for the states
to construct and holds vested rights
IN such roads as they wish over the
public domain. where it is not re-
served for public uses. A cage Is
cited which involves the townsite OF
Creede. Colo, and holds that vested
right Of way for a road is not de-
feated by a subsequent townsite
settlement 1t is also noted that the
Department has held that a reserva-
ton of right of way claimed under
Sec. 2477, in patent issued for lands
traversed thereby. is not necessary to
the protection of such right.
Congressman Taylor asserts that the
ruling of the Department will have the
effect of assuring many localities in
Colorado of their right to maintain
roads over the public domain. He
calls attention to the fact. however,
that the statute does not apply to for
est reserves.
Laylin's Letter.
DEPARTMENT OF THE INTERIOR,
Washington. May 23. 1913.-Hon. Ed
ward T. Taylor, House of Representa-
tives: My Dear Mr.. Taylor-I have
your letter of May 9Th, inclosing COM
munication from Mr.. Charles w. Tay-
lor. County Attorney of Garfield Coun-
ty, Colorado. asking whether there In
any way in which the United States
can give permanent easement or
right of way to a state or county for
be pleased to have reference to any
laws or decisions which may bear
upon the subject-matter. and to be
advised as to whether or not additional
legislation is necessary or advisable.
In reply l direct your attention to
the act Of July 26. 1866 "a Stat. 25al
Statutes. wherein 1t is said:
The right of way for the con-
struction OF highways over public
lands. not reserved for public uses,
is hereby granted.
Constituting this section: the Depart.
mont held in the case of Wason Toll
Road Company v The Townsite of
Creede (21. L. D.. 35) that such vest
ed right Of way over public lands was
acquired by the location and construc-
tion of a road as can not be defeated
by subsequent townsite settlement;
Mount Wilson Toll Road ct al " Schnei-
der (31 l. D.. 405l the Department ad-
hered to the ruling in the. case fret
tion of right of way claimed under
Section .2477, Revised Statutes in a
thereby is not necessary TO the protec-
tion of such right.
1t is stated in Wells V. Pennington
the section was to enable citizens and
residents to build and construct high
ways across the public domain With
out making themselves liable as tres
passers, and the Supreme Court of
North Dakota, in the case of walcott
County, v. Skague. held that the. right
granted is not in the nature of a IL
cense revocable at the pleasure of the
grantor but that when highways are
once established over the public do
main under this section the public be-
comes vested with an absolute right to
the thereof which cannot be re-
voked by the United States &c ". Oak,
1922. A number Of courts have held
that where a right of way has been
lawfully acquired over public lands un-
der the provisions of M section n QtIb-
ssquent purchaser or grantee of the
land takes IL subject to the easement
easement has been extinguished by the
operation of state laws. See McRoss
v. Bottyer Isl Cal. 1922: Estes Park
Colo. Appeals, 10; Thoil v. Koies (e5
Kans.. So2); walcott Township v.
Jvairvfau Touuahfn nah E6Qls