Must BLM land have public access?

[arthos]

There a couple blm patches near me in SoCal that seem to have no publiroad access, surrounded by private property. Is there any law stating there must be any type of easement on the private property to allow public access to fully surrounded public land?

 

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[ncclaymaker]

Nearly all of the roads in my area DO NOT benefit from ANY recorded easements or deeds, yet nobody questions the public’s right to cross public and private lands. Thats because the courts have upheld this right.

Most of the roads in the west have roots in the 1866 mining act. Land patented out after roads and trails were established are subject to these public uses which are not memorialized with recorded deeds or easements. MANY patents had existing roads and trails crossing them.

Of course certain benchmarks have to be met in any case and these vary from state to state.

Mining Act of 1866...
"the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted."

”The original grant did not require being recorded, meaning it was self-enacting, and in 1866 constructing a road often meant using a trail many times and perhaps filling low places, moving rocks and placing signs.”


If there is no obvious historical access to the BLM land...probably isn’t going to be any. We are probably diving down a rabbit hole here.

Round here, the government has no say on which private property can or can’t be sold. They can control the creation of new parcels of land and the development of land..but never the sale or transfer of land as far as I’m aware of.

Perhaps this is an east coast vs west coast issue?

What you are describing in part is a perhaps a prescriptive easement. Use of property without the owners permission for a prescribed length of time, a deed of easement or adverse possession may be made. Yes to the last part... new parcels cannot usually be created in a manner that they are intentionally land locked by the present owner. On the subject of the sale of landlocked parcels, there is always an idiot that will warm that seat. Perhaps in my initial post I didn't define the issue clearly. Thanks for the critique!

 

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[Clay Diggins]

The public right of way is not a prescriptive easement ncclaymaker. It is a federal grant of the right of the general public to establish roads, trails and carriageways across the public lands. This grant was self executing by the simple act of common use of a route or a trail. Once the public used the right of way the right became public property to be used by anyone.

The grant of the right of the general public to create new public ways was terminated in 1976 with the passage of the FLPMA but all previously established public ways remained valid.

There is no expiration of the grant of the public way. Most of the highways roads and trails in use today in the public land states are there due to the 1866 grant - not because of a prescriptive easement. If you are traveling in the public land states the odds are extremely high the roads you are traveling on were created by public use under the 1866 grant - not an easement. There is a big difference between a grant and an easement. An easement can be cancelled or renegotiated but a grant is permanent and can not be cancelled or modified.

If these self executing grants of the right of passage across the public lands existed before the lands were patented to private individuals the right of the public way was not excluded from those lands. The new land owner can not exclude or fence out the public from passage. This is not a prescriptive easement with a defined area and expiration date. It is a grant of the right of the public to pass. The route may change or be improved or moved but the right still exists.

If the land was granted in patent before the public way was established then there is no right of the public to pass. The grant only applied to public lands held in trust by Congress, not private lands. You are correct that existing private land can not be taken for public passage without the creation of an easement, and in many cases compensation.

Heavy Pans

 

[IMAUDIGGER]

While all of the 1866 stuff is correct...maintaining your rights along a trail or road that has been actively used in modern times is fairly easy...exercising your rights along a trail or road that has NOT been used recently generally results in conflict and potential lawsuits. Blazing past “No Tresspassing” signs and starting to run chainsaws and roll logs..is like throwing rocks at a hornets nest.

Rights that are this difficult to exercise become non rights to most people...further down the rabbit hole we go.

 

[IMAUDIGGER]

I guess to wrap up my initial point...the only method of early transportation was by foot and horseback..then later by wagon...but the progression to actual improved wagon trails took numerous decades of petitioning the military then the state to commission roads to be constructed. Meanwhile trails, roads, and bridges were built by subscription by people who would primarily benefit. These were washed out, reconstructed, and realigned several times.

People may not understand that old yellow maps exist that document trails and passage ways that were cemented into existence simply by use under that 1866 act, then confirmed later by old maps. They may only exist as a faint thread on the ground. Sometimes invisible except to detectorists. Check the maps and do your research.