STEPS TO DETERMINE THE STATUS OF POSSIBLE COUNTY OR RS2477 ROADS
1) Determine the exact location, including the county, township and range, section and quarter-sections (NW1/4, SW1/4, etc.) of the road in question.
2) Prepare a map with the road in question to present to the county commissioners along with any information you may have to support that the road is or has been used by the public.
3) Request time on the next commissioners meeting to present your information relative to the road in question. At this meeting ask them if they have ever considered the road a county road, and if they have ever performed maintenance on the road.
4) Depending on the answer from the county commissioners, will determine the next step. The following are the steps you may have to take to resolve the issue;
If they agree the road is a public or county road, explain to them what you found on the ground, such as a locked gate, no trespassing signs, etc. Ask them to see that the signs are removed so the public is not misled into believing the road is closed or a private road.
If they respond by stating this is not a county road, even though it was open to the public for period of time, the next step is to research the county records for evidence relating to the status of the road. In most instances the county has not completed this process. To begin this research, the first step is to go to the Clerk and Recorder’s office and read the Commissioners Journals. These are the records of the county commissioner’s proceedings from the time the county was established to the present day. The location you have established is important now because although you may have a road name and number, it may have been changed over time. As you read through these records, either make copies of those pages with reference to the road in question, or write down the date and page number of the information. If there is reference to a survey, ask the person in the office where you might find copies of the survey. Another source of road status is to contact the County Road Department. There may be evidence of maintenance or if the county collected gas taxes on the road.
5) After this research is completed, analyze the information and make a determination for the next step. If the evidence supports the public or county road, this information should be presented to the county commissioners and request they open the road. If there is no evidence from this research that the road is public, go to step 6.
(6) This step requires a search to determine if the road is open to the public based on the Revised Statute 2477. RS 2477 states that if a road existed prior to the land it crosses being patented, it is a public road. This process involves obtaining copies of the original survey plats (GLO plats) to determine if the road in question appears on these maps. If it does, the date of the survey and approval of the plat is documented. Next, a copy of the original Patents, these are the original deeds transferring the ownership from the government to the first private owner, are retrieved from this same office. These documents are also dated as to the day and year the transfer took place. If the date of the survey is prior to the date of the issuance of the patent, the road is a public road. This is a relatively easy to do. Contact Bernard Lea, who lives in Billings, which is also the location of the BLM State Office where the records are kept, and he will do this research. If the road falls under the RS-2477 law, the county is responsible for the administration of the road. If the county refuses to accept this information, an Attorney needs to be contacted and the process will probably follow the court system.
6) If the road in question is not a RS-2477, there are other methods we can use if we so choose. They are Prescriptive Use and the Curative Statute. At this point legal action may be required and the PL&WAA needs to become involved. Attorney’s fees will be necessary and depending on our financial situation, a decision will be made as to the next step. If the decision is made to go to court, this organization has the expertise to continue this effort.
This can be a labor intensive project. It takes time to do the research, including reading the commissioners journals, meeting with county commissioners, searching other archives both state and federal, and others. Remember, this result can’t be obtained overnight. We cannot expect results without the research specified above. The one thing we want to remember is that when the case is resolved the decision will be upheld and enforced by the local law enforcement agencies. In other words, if the road is declared a public road by the courts, the local law enforcement agencies are responsible for ensuring the road is kept open.