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ROAD LAW HANDBOOK © 2020 GIVENS PURSLEY LLP Page I 15068836 11.Doc 8 RRooaadd LLaaww HHaannddbbooookk Road Creation and Abandonment Law in Idaho Christopher H. Meyer, Esq. GIVENS PURSLEY LLP 601 West Bannock Street Boise, ID 83702 Office: 208-388-1236 Fax: 208-388-1300 [email protected] www.givenspursley.com April 14, 2021 CHAPTER INDEX I. PUBLIC ROAD CREATION ...................................................................................................................... 1 A. Overview .................................................................................................................................. 1 1. Methods of public road creation ................................................................................. 1 2. Terminology — roads, highways, and rights-of-way; abandonment and vacation ....................................................................................................................... 5 3. Private prescriptive use rights based on adverse possession ....................................... 6 4. Roads may be administered by cities, counties, or highway districts. ........................ 8 5. Confusion over the label “commissioners.” ................................................................ 9 B. Blanket legislative declaration (aka legislative fiat) (pre-1881 roads)................................... 10 C. Idaho’s public road creation statute (formal declaration and prescription) ............................ 11 1. Overview ................................................................................................................... 11 2. Roads created by formal declaration ......................................................................... 12 3. Roads created by prescription (public use and maintenance) ................................... 13 a. Overview of statutory requirements ............................................................. 13 b. The public use requirement for road creation .............................................. 15 (i) Use need not be hostile; permissive use qualifies as public use. .... 15 (ii) What quantum of public use is required?........................................ 16 (iii) Idaho law does not require that a road be a major thoroughfare to become a public road. ..................................................................... 18 (iv) Inferences of public use may be based on circumstantial evidence.20 (v) Use by adjacent landowners qualifies as “public” use. ................... 22 (vi) Placement of gates across a road is inconsistent with public nature of use. .............................................................................................. 22 (vii) Payment of taxes ............................................................................. 23 c. The public maintenance prong ..................................................................... 23 (i) There was no maintenance requirement prior to 2/2/1893.............. 23 (ii) Proof of maintenance ...................................................................... 23 (iii) How many years of maintenance are required? .............................. 24 (iv) Maintenance is not required in every year. ..................................... 24 (v) Maintenance is not required of full length. ..................................... 25 (vi) Gratuitous or quid pro quo maintenance ......................................... 25 (vii) Maintenance by federal government ............................................... 26 (viii) No maintenance requirement for creation of an R.S. 2477 rights-of- way? ................................................................................................ 27 D. Statutory platting process (and the acceptance requirement) ................................................. 27 1. Current law ................................................................................................................ 27 2. Acceptance of the plat has not always been required. .............................................. 29 E. Common law dedication ........................................................................................................ 30 1. When a landowner offers to dedicate a road to the public, and the public accepts, a common law dedication occurs. ............................................................... 30 2. Common law dedications are irrevocable, except by statutory process. ................... 32 3. Common law dedications may be “public” or “private.” .......................................... 32 4. Sale of lots: Although the buyer “accepts” the dedication, the dedication is to the public not to the buyer. ................................................................................... 32 5. The offer to dedicate must be clear and unequivocal. ............................................... 33 6. No express words of dedication are required; even an oral dedication may suffice. ....................................................................................................................... 33 7. No metes and bounds description is required for existing roads. .............................. 34 ROAD LAW HANDBOOK © 2020 GIVENS PURSLEY LLP Page i 15068836_11.doc 8. The required “acceptance” is objective, not subjective. ........................................... 34 9. No formality is required; public use is a form of acceptance.................................... 35 10. Acceptance may occur by other means: e.g., city approval of design review.......... 35 11. If acceptance is by public use, the acceptence applies to the full stated width of the dedication, but only to the length that was actually used by the public. ......... 35 12. Common law dedication applies to homesteads and (presumably) other patents. ...................................................................................................................... 35 13. Can an R.S. 2477 road be created by common law dedication? ............................... 36 14. The offer must be by the true owner, not one merely authorized to construct a road on federal land. ............................................................................................... 37 15. Most common law dedications are not subject to passive abandonment (subject to limited exceptions beginning in 2013). ................................................... 37 16. The doctrine of common law dedication remains vital, at least as to older plats. .......................................................................................................................... 37 F. Implied easements .................................................................................................................. 37 G. R.S. 2477 rights-of-way ......................................................................................................... 38 1. Overview ................................................................................................................... 38 a. The enactment and historical context of R.S. 2477 ..................................... 38 b. The repeal and survival of R.S. 2477 ........................................................... 40 c. The peculiar political lineup ........................................................................ 40 2. The effect and operation of R.S. 2477 ...................................................................... 41 a. The Act itself provides little guidance. ........................................................ 41 b. The basic mechanics of R.S. 2477: A federal “offer” that must be “accepted” by the State ................................................................................ 42 c. R.S. 2477 provided an ongoing offer, not a one-time confirmation. ........... 43 d. Why does being an R.S. 2477 road matter? ................................................. 43 3. R.S. 2477 rights-of-way may be created only “over public lands, not reserved for public uses.” .......................................................................................... 44 a. What is unreserved land? ............................................................................. 44 b. A public road may “invade” federal land. .................................................... 45 4. Determining the date of the reservation, withdrawal, or patent ................................ 45 a. Homesteads .................................................................................................. 46 b. Mining claims .............................................................................................. 46 c. Lands subject to reserved mineral interest ................................................... 48 d. School lands ................................................................................................. 48 5. Federal and state role in R.S. 2477 rights-of-way ..................................................... 48 a. State law generally controls R.S. 2477 rights-of-way.................................. 48 b. The federal government retains some measure of control over R.S. 2477 rights-of-way established and recognized on federal land. ................. 50 6. R.S. 2477 roads may be created on the basis of (1) compliance with state statute or (2) “some positive act” of acceptance. ...................................................... 51 7. Idaho’s legislative recognition of R.S. 2477 rights-of-way in 1993 (§ 40-204A) had no retroactive effect. ...................................................................... 53 8. Other questions about R.S. 2477 roads ....................................................................
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