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.
Well... except not all passes or creekbeds were used as roads 150 years ago. There are many creeks that never had roads built in them because often times there were easier routs. Or they were too rugged. Or they didn't go anywhere. Just because a rancher has a creek on his property doesn't mean he closed a road. The burden of proof is on the person claiming that a road was there 150 years ago. Again there is plenty of case law to back this up. In fact, private property is protected in the Bill of Rights (Fifth). Where in the Constitution is the right of way law that trumps the Fifth Amemdment?