by Ken Robinson
Access is a fundamental right for property, one of the “bundle of sticks” in the legal metaphorical sense, and roads are a defining aspect of access. Of course, access is necessary for construction projects. The term “road law” encompasses a large body of statutes and judicial decisions that govern the use of roads encompassing private roads based on express or implied easements, to public roads as a result of historic use, to public highways. In its broadest sense, a road is a physical feature of the ground surface which has been traveled over by livestock (see, e.g., Lovvorn v. Salisbury, 701 P.2d 142 (Colo. App. 1985), people and/or vehicles, typically to get from one place to another. Legally, under some conditions, a public road can exist even though it is no longer used for travel and there are no obvious surface features indicating that a road is there.
There are many kinds of roads, but they can usually be categorized as private roads or public roads. Private roads traverse private property and are owned outright by the fee owner of the land unless an easement for use of the road has been conveyed to a third-party. If the easement is private and non-exclusive, the road remains private and its use shared. Categorizing public roads is more complex, both as to ownership and use. But, whatever the nature of the legal interest in a public road, most are owned by, or held in trust by, a governmental entity, either a federal, state or political subdivision. Private and public roads can be created in a number of ways, for example, by prescriptive us. See C.R.S. § 38-41-101; C.R.S. § 43-2-201.
State highways are purely creatures of statute. C.R.S. §§ 43 2 101, et seq.; C.R.S. § 43-2-201(1). At the county level, there are county roads which are either primary or secondary. C.R.S. § 43-2-108-09. And at the municipal level, roads are typically referred to as streets and alleys. C.R.S. § 43-2-123; see C.R.S. § 31-23-107. A hybrid road can exist in the nature of a toll road. A toll road is a statutory creation the use of which is public, but which is otherwise owned and maintained privately. C.R.S. § 43-2-201(1)(d); see Estes Park Toll-Road Co. v. Edwards, 3 Colo. App. 74, 32 P. 549 (1893).
One fascinating kind of public road is a so-called “R.S. 2477 road,” which is a road created by operation of a remnant of an old federal mining statute known as Revised Statute 2477. The law provides for the recognition of public access across property that at one time was in the public domain by mere use of a roadway during that time. The statue is the hallmark of brevity: "The right of way for the construction of highways over public lands, not reserved for public uses, is granted." (formerly codified at 43 U.S.C. § 932, and repealed by 43 U.S.C. § 1769). That is, merely by traversing a defined route on public lands, miners and settlers may have created a public highway, the legal status of which survives to this day irrespective of whether the route is still in use.
If we can assist with any matters concerning issues involving roads or some other form of access such as easements, please contact Ken Robinson or anyone on the HBC Construction Team.