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Good points, except that who do you believe when one guy says there was a road 150 years ago and another guy says there wasn't? And everybody who was alive to be a witness is dead, and there weren't satellites or aerial photos in the 1860's, and maps were crappy and not very accurate or didn't even show roads.

I think that's why the burden of proof is on the person claiming a right of way to prove the road was there. If they can't prove it was there, then no easement. Otherwise anybody could go anywhere and just say "there was road here 150 years ago".

I think that's why the burden of proof is on the person claiming a right of way to prove the road was there.

The way it works is: If a prima facie case (more likely than not or on the face of it) is made, the burden of proof shifts to the one attacking the road.

The court has ruled that the showing does not have to be shown on any map.

The law regarding 2477 roads has been repealed, but any roads that existed prior to the repeal are still covered by the law.

I have done extensive research on this subject and all it requires is that a trail be in existance prior to the homestead. It could be as little as a pack train trail.

If the trail has moved since, it is still a public way.

The individual complaining about this has been on notice for over 100 years. When they bought the land, it had the right of way with it. The homestead grant included a provision for existing roads, ditches, trails etc.

In any event, FLPMA in 1976 stopped any additional rights of way from being created by public use after that date.
It could not, however, stop public rights of way that had already been established through use. One cannot repeal a law under which historic rights have already vested.
2 marsh2

Good points, except that who do you believe when one guy says there was a road 150 years ago and another guy says there wasn't?
And everybody who was alive to be a witness is dead, and there weren't satellites or aerial photos in the 1860's, and maps were crappy and not very accurate or didn't even show roads.
I think that's why the burden of proof is on the person claiming a right of way to prove the road was there. If they can't prove it was there, then no easement. Otherwise anybody could go anywhere and just say "there was road here 150 years ago".
3 stop_rs2477

Who to believe? -- Believe geography. 150 year old trails followed natural routes, 'roads' that could not be blocked just because someone homesteaded or purchased the surrounding property.

That's why the burden of proof is on the person denying a right of way. We have a presumption of liberty, - to travel, to pass by, - under our Constitution.
Acquiring property does not give you the power to unreasonably deny access to a long established right of way.