You Can’t Get There from Here (or Can You?): A Road Map to Public Access

Probate & Property Magazine: Volume 28 No. 03

By

John N. Iurino and Sivan R. Korn are partners in the Tucson, Arizona, office of Lewis Roca Rothgerber LLP.

A dispute over a landowner’s right of access to an Arizona ranch provides a primer on the legal options that attorneys might explore to establish access rights.

When Winifred Walker bought her 8,000-acre ranch in northern Arizona in 1934, a single road provided access to the property from the nearest state route, meandering through several neighboring ranches. Like all her neighbors, Ms. Walker knew it as the Old Clearwater Road. It was a dirt road, not passable during flash floods, but the county kept it graded and, over the years, constructed drainage structures, cattle guards, and even some traffic control signs.

Some 75 years later, Ms. Walker’s two sons decided to sell the ranch to Texas-based Drill & Pump, Inc. (D&P). D&P had already purchased the property bordering the Walker ranch to the north and planned to transform the combined 20,000 acres into a water well drilling site. Before closing, D&P’s infamously tenacious CEO, Bitsy LeBlanc Plauché, learned that D&P’s title insurer refused to insure access to the Walker ranch by the Old Clearwater Road. Undeterred, Bitsy went ahead with the deal, knowing that the Walkers—like all other ranchers in the area—traveled the Old Clearwater Road daily and that another dirt road provided access to the adjoining property D&P had already purchased. Willis Stout, the owner of the property located just south of the Walker ranch, heard the news about D&P’s plans with chagrin. Stout now anticipated that the Old Clearwater Road, which traversed his property, would be bustling with heavy-duty drilling rigs and excavation vehicles instead of the occasional cattle trailer. A week after the announcement of D&P’s purchase, Stout erected a gate across the Old Clearwater Road where it intersected with his property. Stout locked the gate and refused all requests from D&P to access the Walker ranch over the road.

Realizing that the narrow dirt road leading to its property from the north would not provide feasible access for its heavy drilling and construction equipment, D&P considered its legal options. No deed in the Walker property’s chain of title contained a specific right of way over the Old Clearwater Road, and no recorded easement existed for D&P’s benefit. The company’s evaluation of other legal alternatives is chronicled below and serves as a primer for real estate attorneys with clients facing similar access issues.

Condemnation of a Private Right of Way

D&P first assessed its chances in a private condemnation action. Arizona statutory law gives a landlocked owner the right to condemn a private way over the land of another. Ariz. Rev. Stat. Ann. § 12-1202. A landowner seeking such a private way of necessity must show a reasonable necessity for the taking. Although absolute necessity is not required, the existence of an adequate alternative outlet defeats the claim. See, e.g., Tobias v. Dailey, 998 P.2d 1091 (Ariz. Ct. App. 2000). Other jurisdictions, including Arkansas and Washington, have very similar statutory provisions. Ark. Code Ann. § 27-66-401; Wash. Rev. Code Ann. § 8.24.010.

Considering that a second dirt road provided access to D&P’s adjoining property, D&P knew its chances of condemning the portion of the Old Clearwater Road traversing Stout’s land as a private way of necessity were slim. Condemnation would involve compensation—not only for the value of land taken but also for damage to the value of the land as a whole. Further, if Stout were compensated, no doubt the other neighboring ranchers would erect gates across the Old Clearwater Road and demand similar treatment.

Prescriptive Easement

D&P next concluded that any attempt to establish a prescriptive easement over the Old Clearwater Road also would probably fail for two reasons. First, Stout stated that he permitted the Walkers’ use of the road. To establish a prescriptive easement, a property’s continuous use during the adverse possession period must be “under a claim of right” and “hostile” to the owner’s title. Permissive use, therefore, defeats prescription. See, e.g., Spaulding v. Pouliot, 171 P.3d 243 (Ariz. App. 2008). Second, prescriptive rights were not an option because D&P believed that the Old Clearwater Road—however remote—was a public road, and private parties cannot acquire prescriptive rights over public highways. The county had maintained the Old Clearwater Road for years. And, although the road’s current travelers were principally the neighboring ranchers, the occasional hunter, camper, or birdwatcher also used it.

To D&P’s dismay, the county aligned itself with Stout, claiming the Old Clearwater Road was not a county highway. The county attorney asserted that although the county had used taxpayer dollars to grade and improve the road for decades, there had been no statutory dedication of the road by the county board of supervisors to the public, and the road had not appeared on official county maps since the 1970s.

Could D&P establish a public right of way over the Old Clearwater Road despite the county’s and Stout’s opposition? The answer was probably yes. Could D&P improve the road for its “heavy-duty” commercial use? Perhaps not.

Dedication of a Public Right of Way

In Arizona, as in most jurisdictions a public road (a “county highway”) may be established exclusively through a statutory dedication procedure outlined in Ariz. Rev. Stat. § 28-6701 (and previously under its similar territorial predecessor, section 3617 of the 1901 Arizona Code). The Old Clearwater Road was never statutorily dedicated as a public road. Based on this, the county opposed D&P’s position.

Like many other jurisdictions, however, Arizona also recognizes the doctrine of common law dedication. Unlike statutory dedication, in which fee title to the land constituting the road passes to the relevant governmental entity, common law dedication creates an easement for public use. It allows the public to use the dedicated land for specified purposes, while fee title remains with the dedicator. E.g., Pleak v. Entrada Prop. Owners’ Ass’n, 87 P.3d 831 (Ariz. 2004). To be effective, common law dedication first requires an offer. “No particular words, ceremonies, or form of conveyance is necessary to dedicate land to public use; anything fully demonstrating the intent of the donor to dedicate can suffice.” Id. at 837. Next, the offer must be accepted by the general public.

Was there ever an offer to dedicate the land underlying the Old Clearwater Road for public use? There was. While searching for historical records at the county library, D&P’s expert stumbled on a collection of old maps compiled by another local rancher, Beau Cartwright. Cartwright had made it his life’s work to document the history of the area. After Cartwright’s death 30 years earlier, his son, Beau Jr., picked up where his father left off. The Cartwrights’ meticulous records included everything from family trees and chains of title for the surrounding ranches to 18th century military records describing the area. The Cartwrights were fascinated with the Old Clearwater Road and the wash (dry stream bed) along which it ran. Among their records were old maps and journal entries showing that the road had existed as a public route since at least the mid-1800s, and that it continued as the main route connecting the two nearest towns well after the federal government granted patents for the ranches surrounding the road to private owners in 1916. Why did it matter? These facts were significant for purposes of a little-known federal law regarding access roads over public lands.

How the West Was Settled: The Wonder of R.S. 2477

To promote the settlement of the West and the exploitation of its mineral reserves, in 1866 Congress passed an open-ended, self-executing grant of “[t]he right-of-way for the construction of highways over public lands, not reserved for public uses.” Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253 (codified at 43 U.S.C. § 932), repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub. L. No. 94-579, § 706(a), 90 Stat. 2743. This statute, commonly referred to as R.S. 2477, was the federal government’s “standing offer of a free right of way over the public domain.” Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646, 648 (Utah 1929). It was responsible for the creation of the West’s major transportation routes. Congress repealed R.S. 2477 in 1976, 110 years after its enactment, in favor of a policy of land conservation and preservation, FLPMA, 43 U.S.C. § 1701 et seq. The statute retains some vitality, however, because Congress also specified that rights of way created under R.S. 2477 before October 21, 1976 (the effective date of the repealing statute), remain valid. Pub. L. No. 94-579 § 701(a), 90 Stat. 2743, 2786.

As one court observed, “In the years after its enactment, R.S. 2477 was uniformly interpreted by the courts as an express dedication of the right of way by the landowner, the United States Congress.” S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 769 (10th Cir. 2005). This offer could be accepted in any manner recognized by state law. In Arizona, therefore, the federal offer could be “accepted” by government action through the statutory dedication procedure. It could also be accepted in a manner that satisfies the doctrine of common law dedication.

In most jurisdictions that have addressed this issue, including Arizona, common law “acceptance” of a right of way by the public requires no particular formalities. An offer to dedicate may be accepted by continuous public use over a period of time, indicating the public’s acceptance of the grant. See Pleak, 87 P.3d at 837 (recognizing that public use is one form of acceptance); Hunt v. Richardson, 163 P.3d 1064, 1069–70 (Ariz. Ct. App. 2007) (recognizing that “[r]oadway easements for public use may be created by common law dedication” and that acceptance occurs when some members of the public, including those residing nearby, use the road). See also Western Aggregates, Inc. v. Yuba County, 130 Cal. Rptr. 2d 436 (Ct. App. 2002) (public use evidences acceptance of R.S. 2477 dedication); S.Utah Wilderness Alliance, 425 F.3d at 770–71 (citing authorities considering public use of the right-of-way as acceptance).

Public repair, maintenance, and depiction of a road on official maps also are traditional signs of acceptance of a dedication. E.g., S. Utah Wilderness Alliance, 425 F.3d at 770–71; Restatement (Third) of Property: Servitudes § 2.18 cmt. e (2000).

Based on the historical records, D&P could show that the public used the Old Clearwater Road for more than 200 years, that it was depicted as a county road on official maps and in other county records until the 1970s, and that the county used public resources to maintain and improve it. As a result, there can be little doubt the federal dedication offer was “accepted” decades before D&P purchased the Walker ranch.

Once the offer and acceptance occurred, the dedication of the Old Clearwater Road was irrevocable. All subsequent title holders took title to the land subject to the public right of way, whether the original patents or subsequent deeds referenced it or not. E.g., State v. Crawford, 441 P.2d 586, 590 (Ariz. Ct. App. 1968); Western Aggregates, 130 Cal. Rptr. 2d at 436. As a result, Willis Stout’s argument that his 1956 deed did not specifically mention a public right of way over the Old Clearwater Road could not help him keep D&P at bay.

Now You See It, Now You Don’t: The Migrating Road

Stout’s and the county’s second line of defense concerned the exact path of the Old Clearwater Road. They argued that since the 1866 grant, the road’s path had changed with the natural migration of the Old Clearwater wash. Stout’s expert argued the earlier historical references to the road described it as running along the wash’s north bank, whereas later depictions show it along the south bank. This argument led Stout’s and the county’s experts to a painstaking examination of points along the road’s path, with names like “the Ash Short Line” and “the Butcher Knife Fork.” They argued that even if a public roadway easement was created, it was voided by later “migration” of the road’s path.

This is a common argument in cases involving historical roads. It typically fails when, as was the case here, shifting topography and advancements in transportation cause gradual changes in the road’s path. In a 1932 case, in which flooding caused a change in a road’s route from one side of a creek to another, the U.S. Supreme Court reasoned:

The original road was formed by the passage of wagons, etc., over the natural soil, and we know, as a matter of ordinary observation, that in such cases the line of travel is subject to occasional deviations owing to changes brought about by storms, temporary obstructions, and other causes. But, so far as the specific parcels of land here in dispute are concerned, we find nothing in the record to compel the conclusion that any departure from the line of the original highway was of such extent as to destroy the identity of the road as originally laid out and used.

Central Pac. Ry. Co. v. Alameda County, 284 U.S. 463, 467 (1932).

Later decisions similarly recognized that changes in a road’s path or discrepancies in the description of its location are not enough to deprive the public of the right to use it, as long as it has been used. E.g., Sheridan County v. Spiro, 697 P.2d 290, 298 (Wyo. 1985). As was the case here, despite any variations in its path the road remained within the private parcels it originally traversed, and the private owners are held to have demonstrated “long acquiescence in the existence of the road and acceptance of the [local government’s] efforts to maintain it.” Town of S. Hero v. Wood, 898 A.2d 756, 760 (Vt. 2006). Stout’s argument that the road’s exact location on his property had changed somewhat over the past 50 years did not help him.

Drill, Baby, Drill? Not So Fast

D&P may have guaranteed the public’s right to use the Old Clearwater Road, but securing its own plans to widen the road and use it as the main route to and from its drilling site would have been a much more difficult task.

Conceding a public easement existed for the Old Clearwater Road, Stout argued the use of the easement must be limited to the use of the easement when it was created. He contended that because the Old Clearwater Road started as a wagon trail and had been used for the transport of cattle, it could not be used in any other manner or for any other purpose. While this argument is absurd, it is also highly doubtful that D&P could have transformed a narrow dirt road with established fence lines into a broader, heavily traveled commercial route without Stout’s consent and a hefty sum of money.

Rights of way are a species of easements and are subject to the principles that govern the scope of easements. In Arizona, “[t]he rights of any person having an easement in the land of another are measured and defined by the purpose and character of the easement.” Hunt v. Richardson, 163 P.3d 1064, 1073 (Ariz. Ct. App. 2007). In evaluating the scope of an easement, courts examine the contemplated purposeand character of the grant. They do not, as Stout asserted, arbitrarily limit the easement’s scope to its original use. Land dedicated for use as a public street a hundred years ago can be used in the manner streets are commonly used today. Modern vehicles—not only wagons—can travel it, and it can be improved to accommodate modern transportation needs and traffic control. E.g., Timberlake Plantation Co. v. Lexington County, 431 S.E.2d 573, 575 (S.C. 1993). Courts also recognize that increases in traffic volume may have been contemplated by the original grantor. E.g., Shooting Point, L.L.C. v. Wescoat, 576 S.E.2d 497, 503 (Va. 2003). In the Restatement’s words: “[T]he manner, frequency, and intensity of use of the servient estate may change to take advantage of developments in technology and to accommodate normal development of the dominant estate.” Restatement (Third) of Property: Servitudes § 4.10 cmt. f (2000).

It is far less probable, however, that a court would have concluded that the grant of the Old Clearwater Road—used for decades as a public highway connecting the surrounding towns and ranches—contemplated a much broader road able to accommodate heavy duty equipment for commercial uses.

Conclusion

After months of failed attempts at negotiating an easement with Stout, and reacting to the economic downturn, D&P abandoned its development plans for the site. If anyone is interested, 20,000 acres of ranch land in northern Arizona are now available.

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