Thenks for the info. Looks like this is a case where their wa s actually proof of prior use. I'm hoping you aren't claimng that ranchers have to prove that there was never prior use. That would certainly turn the Constitution upside down.
I am saying that there has to be sufficient showing of prior use to make a prima facie case.
It does not have to be strong enough to be "proof".
After a prima facie case is made, all presumptions go to the prima facie case and the burden of proof shifts to the one opposing the road.
If the prima facie case is not overcome with "proof", the road is shown to exist.
For instance, if the one claiming there is a right of way presents a Government Land Office map showing the right of way, it establishes a prima facie case that there was a right of way there when the Government Surveyors surveyed to make the map.
Ancient documents are given a presumption of validity and so that presumption is taken as fact. The document cannot be attacked as in error because the person who prepared it cannot be cross examined.
Similar treatment is given to other presumptions. The presumptions do not have to be based on "proof" but rather can be based on inferences.
A similar presumption can be made that there was travel along a river to access land further up the river. The travel then made a public right of way for similar travel by other members of the public.
Rights of way that were dedicated to the public by this law never expire. The one who homesteaded the land, probably followed the existing trail to get to the land they homesteaded. A presumption can be made that they were not the first to travel that way to the land, and so were on notice that a trail existed prior to the homestead grant.
There are two parts of Hatch vs Black, the second is a rehearing of the first and the court further explained the operation of this law. It is still good law and is cited in federal cases as well as other states.
As I stated earlier, I have done extensive research on this.
I spent over 400 hours. Anyone else can research and find the same information.
But most of the disputed cases don't involve established right of ways. They involve allegations that haven't been proven. That's why the courts have consistently put the burden of proof on the trespasser.
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rs2477 wrote:
Thanks for the info. Looks like this is a case where their was actually proof of prior use. I'm hoping you aren't claimng that ranchers have to prove that there was never prior use. That would certainly turn the Constitution upside down.
Geography doesn't lie. -- A trail through natural passes, around swamps, lakes, etc, cannot be closed by merely acquiring the surrounding property. Our Constitutional rights of way trump 'absolute' property rights.
I should further explain.
In my research I cite about forty cases. Some cite Hatch vs Black and expand on the explanation.
There is extensive case law on this subject.
There is another law that applies it some of these situations. It is also an old federal law called the Unlawful Enclosures Act.
It was passed prior to homesteading and so its provisions are incorporated, by reference, into all homestead grants.
These laws do not infringe on private property rights because they are all incorporated in the land grant by reference. (Existing laws are all incorporated by reference even if it is not explicitly stated on the grant.)