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RS 2477: Archaic law imperils private property

By A.J. Chamberlin
web posted May 10, 2004

When my family and I moved into the mountains in 2002, we thought we were fulfilling a dream. Little did we suspect, however, that it would soon turn into a nightmare, and that our troubles would be caused by an outdated and outrageously abused highway law known as Revised Statute 2477. The name of this arcane statute might be forgettable, but all Western landowners should heed the threat it carries.

Here's how our nightmare unfolded. Before purchasing the property in Boulder County, I asked the listing agent about the rough two-track that bisected it. I was told that the previous owner added it to access a prospective building site and that it was also expanded as a firebreak in the late 1980s. I even checked with the county, which confirmed that it was indeed a private road.

Being a real estate agent, I thought I had covered all the bases. Then I learned, with devastating consequences, about the RS 2477 loophole.

After we had built our house and let the neighbors know that we would now be occupying the property, we put a gate up at the end of our driveway. In less than 12 hours, the gates had been ripped down. Many more acts of vandalism soon followed.

Soon after that, I found out that the county would be holding a hearing to discuss my driveway.

At the hearing, county officials said that my driveway may be a "public highway" under RS 2477. We soon learned the only way to protect our property rights was to endure costly litigation aimed at determining whether or not this two-track is a "public highway."

For the uninitiated, RS 2477 is an antiquated statute that dates back to the Civil War era. The original intent of the law was to provide for Western expansion and homesteading in the later half of the 1800s. After determining that the law had since served its purpose, Congress repealed it in 1976. Valid and existing rights, however, were to be honored, which created the legal loophole that some local governments and recreational vehicle groups are now exploiting and abusing.

My family is not the only one battling this old law. There are stories like this all over the West, with no end in sight. RS 2477 highways never expire so there is truly no protection for landowners. Pity the landowner with a path that off-road vehicle groups one day decide represents a desirable access route.

No matter how absurd, there is no logical process to deal with these assertions, no recourse for affected landowners short of costly litigation. And as a real estate agent there is no way I now can be confident that I can represent clients in good faith with regards to the sanctity of their land.

There is a way to put this issue to rest once and for all. Congress needs to act to close this loophole. Landowners need consistent standards for what is and is not a constructed highway under this old law. We need a process so counties and off-road vehicle groups cannot just assert their perceived rights and make landowners foot the bill. This fair and open process should contain deadlines for asserting RS 2477 highways, so that this issue can finally be put to rest.

A recent Colorado state Senate resolution urging Congress to set standards that will settle RS 2477 disputes passed with overwhelmingly bipartisan support. Our Senate should be applauded for supporting landowners and our interests.

We cannot live like this: waiting and hoping our property will not be taken away because Congress failed to put in place a fair and modern process to determine where highways exist.

How many more property owners need to waste time and money fighting these fictitious roads until Congress fixes this problem? Please join the state Senate by calling on our congressional delegation to find a fair, balanced and timely solution and close this unfair loophole.

A.J. Chamberlin is president and founding member of Property Owners for Sensible Road Policy and can be contacted at (303)588-8999 or through their Web site at www.posrp.org.

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