PLSO The Oregon Surveyor March April 2020

14 The Oregon Surveyor  | Vol. 43, No. 2 The Federal Land Rights Series Edition 20: More than 15 decades after Congress sought to make legal access to all land throughout the West readily available, reaching both public and private properties in remote locations remains a frequent source of troublesome litigation. Note: this is a shortened version of this article, the full article, which recently appeared in NSPS News & Views, is available upon request from the author, Brian Portwood, who may be contacted at bportwood@mindspring.com . While many vast areas within the western US remain public today, at the federal level, comprising either simply unsold remnants of the federal public domain or land which has been federally reserved for one purpose or another, in other ar- eas, where the most readily inhabitable western property has drawn millions of people to choose to make their lives, re- sulting in the development of sprawling urban population centers, no federal land can be found for many miles, among the countless lots, parcels and tracts that form our great western cities. But aside from the areas of those corresponding ex- treme types, where either federal land or non-federal land completely dominates the landscape, to the complete exclusion of the other, the AmericanWest is largely an enormous patchwork of alternating pub- lic and private property ownership, and wherever landhas been federally disposed, through the issuance of federal patents or federal land grants of various other kinds, untold thousands of miles of boundar- ies now divide federal and non-federal land, with significant legal consequenc - es. The great western migration, which reached its zenith during the late Nine - teenth Century, elected leaders of that time period realized, would be attend - ed by a myriad of property rights issues, as the western landscape was converted from the home of Native American peo- ples, into innumerable farms and towns, under the expansive federal land disposal policy associated with the concept known as Manifest Destiny, focused on extend- ing the US from the Atlantic to the Pacific. During the early portion of that migratory period however, prior to the Civil War, when virtually all of the western ground not still under the control of other na- tions remained public domain, there was no particular reason for any concern over access to land, as each settler or group of settlers simply traversed the open prairies, slopes and canyons, by means of any practical route they could find, to reach a suitable destination, upon which to de- velop a homestead. But of course as that immense wave of humanity produced thousands of western communities, and each of the several young western terri- tories grew, soon achieving statehood, a clear need for a well defined network of public roads emerged, in order to en- able the successors of the pioneers, and newcomers as well, to reach their prop- erties by passing around or through the private lands of others, without unau- thorized disruption of privately acquired property rights. Thus implementation of the public right-of-way concept became a fundamental aspect of our country’s westward expansion, enabling land lying ever further to the west to be put to pro- ductive use, and to be directly connected with the eastern states, while burdening the land lying to the east of the western- most territories with public right-of-way, eventually stretching all the way to the West Coast, in fulfillment of that national quest to connect our ocean boundaries. In the wake of the tragic cataclysm of the early 1860s, as the eastern states were just beginning to mend from the torment of warfare, Congress turned its attention to issues presented by development of the remote western portion of the conti- nent, but because that distant landscape still appeared to them, from their vantage point on the East Coast, to be essentially a boundless wilderness, the congressional leaders of that day saw no need to enact federal law containing any level of speci- ficity with regard to land access. Instead, focusing squarely upon federal promotion and facilitation of both typical settlement andmining ventures throughout theWest, in 1866 they elected to produce what has been described as the most open ended grant of land rights ever congressionally made, which came to be widely known as RS 2477 (FN 1). Remarkably, in high contrast to the verbose and elaborately detailed legislative standards which have emerged in more recent decades, those authors of legislation expressed their in- tent in making that grant through the use of a single incredibly concise sentence, “Right-of-way for the construction of high- ways over public lands, not reserved for public uses, is hereby granted.” In effect, after 1866 any typical citizen could initiate a public right-of-way, across any portion of the unacquired and unreserved public domain, simply bymaking use of a distinct route for purposes of travel, and legions of settlers and miners naturally proceed- ed to do just that, with their footsteps, on horseback, and with their wagon wheels, resulting in the formation of what would become the backbone of our current na- tionwide transportation system. Over the next 110 years, the western states and their counties were thus at liberty to adopt publicly used routes and declare public roadways crossing the openpublic domain, based upon any form of actual public use thereof as a path of travel, thereby put- ting in place permanent land rights, in the nature of a right-of-way easement, either documented or undocumented, borne by the underlying unpatented federal land. But of course the federal land disposal era was not destined to last forever, and in 1976 that period ended, with the arriv- al of restrictive federal policy, designed to support preservation of land rather than development, resulting in the demise of RS 2477, along with numerous other old fed- eral laws pertaining to land rights, which were congressionally deemed at that time to be obsolete and no longer needed (FN 2). The ensuing powerful national focus on protection of all federal land, reserved or unreserved, was destined to generate ongoing controversy and litigation over land access however, in those locations where a need to cross a federal property Featured Article