Gunnison news-champion., 1924-07-11

HOLDS AGAINST
PORT. VAN TUYL
Cannot Stop Cattlemen
From Using Drive.
way Established AZ
Years. Important
Other Points Devel-
oped From Case.

Judge Thomas J Black sustained
the GunuIsOH county stockmcn of the
West Side Ohio Creek Range Assoc
IatlOU in their contention that Port
Van TUyl had no right 20 fence up the
driveway they have used for ~ year
across the head Of Antelope creek to
the West Elk range, and granted a
temporary injunction which orders Hr
Van Tuyl to allow free access TO the
ytockmen 10 drive the 1000 head Of
cattle back and forth, and 20 the pub
lie 10 use vehicles over this roadway
In September term Of court the in
junction will be heard more in detail
II Van Tuyl persists in the case, and
the compIatnants will ask that n 60
foot county roadway be established
there free from all obstruction. At
present he is allowed to keep up his
four fences, but must provide gate.
The case was brought in the name
Of c. y. Jones, president of the West
Side Association, and was presented
by Clifford H. Stone. Moynihan &
Hughes represented the other side. For
the stockmen a number of witnesSes
were heard, including 7. W. Gray. l.
II. Easteriy. Lee Lehman and Others.
The old-timers testified that Mr.. Blod-
soc had used this road for his sawnill
work in 1882, and that there was a
wcll-dcfincd road there at that time
In 1884 Gray & Tanner took up part
Of the land over which the roadway is
IN question, and in 1920 Van Tuyl the
remainder.
The theory of the stockmen, ar
nounced by Judge Stone. is based on
a law OF congress in In 1866 providing
that a night of way was granted to
the public across any public lanis.
This becomes an easement against the
land, which holds against settlers
when the public can show that It has
accepted such grant by use. in well
defined trail or road.
number of similar cases have late
y come up in the courts OF Colorado
and decisions are uniformly with the
public, namely, that a settler has no
right to block generally used thoro-
fares, since the public has acquired
the right By use under the L. S. stat
ute of 1866.
The case excited much interest a.
mong stockmen and lawyers of Mon
,rose county as well as Gunnison,
since curiously enough the matter had
not been brot to general attention in
western Colorado.
a case Is up in the supreme court
Of the state OF Wyoming at present,
where s,ockmen asked for driveway
through newly established ranch
where it was shown that although
never used for vehicles, it had been
previously and regularly used as a
sheep trail. The lower court sustained
the stockmen and granted lo0foot
right t-of-way. However, the stockmen
have carried it up, asking for 500 feet
width on the theory that congress in
the original law intended n right-of-
way suitable for the purpose required
and that focks of sheep ought TO have
500 feet.
The width Of roadway is, of course.
another matter, but here enters al
question of very great interest TO the
stockmen, who were fearful when the
$40 acre homestead law was passed
that their natural driveways would be
closed up. Decisions are now becoming
numerous that when a man takes upl
public land, he takes it subject to the
easements which stockmen may have
acquired in the nature of drivewgys
and roads
On the other hand, it would seem to,
in large part, obviate the necessity of
the government reserving from set
tlement these long stretches up the
principal valleys and gulches, which
were set aside at the time of the 640-
acre homestead law. If it is true that
the stockmen have vested rights un-
der the law in these natural driveways.
it is valuable gain for them. but il
follows that there is no need to keep
from settlement strips from so rods
TO a mile wide, up dozen different
valleys in our region, such as now
exist.