When Moffat County commissioners adopted their R.S. 2477 policy in 2003, they made a point of saying they would not use it to assert road claims across private land.
But the lawyer the county hired to litigate a dispute over a half-mile stretch of road near Greystone is using R.S. 2477 as part of the county's legal argument that the road is in the public domain.
The claim is part of a suit the county filed against Katherine and James Bassett of Greystone, about ownership of a .47-mile long road.
The county calls this stretch of road County Road 60A. The Bassetts call it their private property.
The road became an issue when, according to the commissioners, the Bassetts denied road access to a Wisconsin landowner who used the road to drive to his property. That landowner complained to the commissioners, who retained R.A. Santarelli of Longmont to handle the case.
Santarelli filed suit against the Bassetts on behalf of the county in late November. He based his arguments in part on Revised Statute 2477, a right-of-way law Congress passed in 1866 to facilitate settlement of the West.
But the right-of-way claim crosses private land. When the county commissioners adopted a final inventory of potential road claims in June 2002, they stipulated that the claims would not be made on private land.
The statute grants "the right of way for the construction of highways across public lands not otherwise reserved for public purposes."
Congress repealed the law in 1976 when it passed the Federal Land Management and Policy Act, but stipulated that R.S. 2477 right-of-ways that existed prior to 1976 still existed.
The commissioners adopted a final R.S. 2477 resolution in January 2003 that defined a constructed highway as anything from a livestock trail to a footpath created by Native Americans.
Although the county has mapped 2,000 miles of potential R.S. 2477 claims in Moffat County, including claims across Dinosaur National Monument, Browns Park National Wildlife Refuge and proposed wilderness areas such as Vermillion Basin, none of the claims cross private land.
The county's final inventory protocol stipulates "Moffat County's R.S. 2477 assertion will not cross: privately owned lands; or State of Colorado owned lands; unless the R.S. 2477 assertion is requested by the owner of the private lands or the State of Colorado and supported by all other private landowners whose property is crossed by the asserted R.S. 2477 right of way. Nothing in an R.S. 2477 assertion shall interfere with the rights of other landowners, who have declared the roads through their land to be private roads."
When contacted Monday, Commissioner Darryl Steele said he had not reviewed Santarelli's complaint.
Santarelli said he did not discuss with the county commissioners his decision to cite R.S. 2477 in the complaint.
Santarelli declined to comment Monday regarding his use of R.S. 2477 in the lawsuit.
But in a letter Santarelli sent to the Bassetts in February 2004, Santarelli outlined his reasoning for citing R.S. 2477 in the complaint.
Joseph Bower settled the land west of the Bassetts in 1914 and received a patent to it in 1919. To reach County Road 10, he would have had to cross the public land that would ultimately become the Bassetts' property, Santarelli wrote.
Patent to the Bassetts' property was not issued until 1923. Therefore, Santarelli wrote, Bower must have crossed the public land for about four years.
"Use of the road is the required element and such use may be by anyone who had occasion to travel over public lands. If the use is by only one person, it still suffices to create a public road. A road can be a 'highway' even if it reaches only one owner," Santarelli wrote.
While discussing the road in public meetings, the commissioners argued that the county recognized the road as a county road in 1953. While admitting that the road isn't deeded, the commissioners have maintained that it nevertheless is a road.
Santarelli also cited a Colorado law that states that after a road has been open for public use for 20 years, it becomes a county road.
The Bassetts have yet to respond to the county's complaint. Their response will determine the county's next course of action, Santarelli said.
Rob Gebhart can be reached at 824-7031 or firstname.lastname@example.org.