Revised Statute 2477

The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.

What is Revised Statue 2477?

It’s Your Fundamental Right-To-Way Across The Earth.

Revised Statute 2477 is a land grant passed the U.S. Congress in 1866. It granted the right of way to all U.S. Citizens to construct highways over public land that were not reserved for public use. The statute was passed into law as Section 8 of the Mining Act of 1866 and remained in place until its repeal in 1976. It is directly responsible for the establishment of interstate, state, county, and city road systems across the western United States. It is also responsible for the construction of forest roads, mining roads, canals, ditches, bridges, and other fundamental access paths that exist today.

“The Right-Of-Way”

The Revised Statute 2477 Right of Way is a human right granted by the U.S. Congress in 1866. It recognizes the fundamental right to travel across the Earth over unclaimed land. Part of the Mining Act of 1866, it allowed the construction of roads, trails, bridges, canals, railroads, and other recognizable paths known as “highways.”

“For The Construction of Highways”

Construction of an RS 2477 highway was established by repeatedly using the same path over the earth until a visible route was created. The courts have ruled that animal trails, footpaths, bridleways, and other recognizable paths fall under the term “highway” and are RS 2477 rights-of-way.

“Over Public Land, Not Reserved For Public Use,”

The RS 2477 right-of-way must have been constructed on public lands that were not reserved for the public, or claimed under the various homestead and mining laws. Construction on an RS 2477 right-of-way must have begun before the land was withdrawn from public entry.

“Is Hereby Granted.”

RS 2477 was a grant that was authorized upon the passage of the Mining Act of 1866. It did not require authorization, documentation, or recognition of any kind to build a road on public lands.

How is Revised Statute 2477 a property right?

Rights are reserved in the inherent nature of a Right-Of-Way.

Since the beginning of time, rights-of-way have been considered public spaces and are fundamental to the public forum. They are among several places where individuals cannot be trespassed without committing a crime and have an unalienable right to free speech and communication. Rights-of-way facilitate parading, protesting, dissemination of information, exploration, commerce, news gathering, and the multiple-use doctrine.

RS 2477 rights-of-way contain a bundle of rights, including the right to use, the right to maintain, and the right to improve. These rights are reserved for the states and their citizens. The scope of these rights covers a width specified by state law and includes all things that facilitate the use of the right-of-way. This may include roadside pull-offs, bridges, drainage ditches, culverts, and the like.

The Blacks Law Dictionary defines a Right-Of-Way as the following:

“The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.”

Does RS 2477 Still Apply?

Yes, even though the Federal Land Policy Management Act repealed RS 2477, it recognizes RS 2477 Rights-of-way as valid.

FLPMA repealed the original RS 2477 statute. However, three separate sections of FLPMA declare that Revised Statute 2477 rights-of-way shall not be terminated, and all actions by the secretary shall be subject to these rights.

However, the application of RS 2477 is often overlooked or ignored in favor of new right of way standards incentivized by federal funding.

The abandonment of RS 2477 right-of-way standards is incentivized by federal transportation funding that demands compliance with FLPMA and NEPA standards and is contradictory to RS 2477. The FLPMA provides new standards for rights-of-way on federal lands, which are often applied in favor of RS 2477 to acquire federal funding. These standards lack the protections of RS 2477 and are permitted by federal agencies rather than granted by the U.S. Congress.

The Federal Land Policy Management Act of 1976 (FLPMA) states:

“Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act.”

FLPMA 701(a), 43 U.S.C. 1701 note (a).

“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”

FLPMA 701(h), 43 U.S.C. 1701 note (h).

“Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted.”

FLPMA 509(a), 43 U.S.C. 1769(a).

During the rule-making process, multiple debates took place regarding the repeal of Revised Statute 2477. These debates, published in the Federal Register, are fundamental to understanding the legislature’s intention for these three sections of FLPMA.

RS 2477 Right-of-way History

Senator William Morris Stewart, Author of the 15th Amendment to the US Constitution and the Mining Act of 1866.

The first right-of-way laws were enacted by the Continental Congress in 1777 regarding railroads and navigable rivers shortly after King George III’s declaration of the Proclamation Line. In 1785, the Land Ordinance was enacted and established the Public Land Survey System, and a mechanism to dispose of newly acquired western lands. It wasn’t until the Reconstruction Era that RS 2477 became law.

The Mining Act of 1866 remedied multiple problems during the reconstruction era. Up until that time, wagon roads, mail roads, and railroads were granted by individual acts of Congress. With the vast western expansion, the federal government couldn’t keep up with the demand for access routes administratively or financially. It solved issues relating to land claims under the Land Ordnance of 1785, which left land owners disputing rights-of-way to access abutting property lines. It settled multiple disputes with western miners over haulage tunnels, accessing mining claims, constructing canals, and even faced an amendment to benefit the Comstock.

The Mining Act was among multiple mining and homestead laws that encouraged western expansion by poor Colonists, immigrants, and newly freed slaves. It remidied mutiple issues relating to right of way disputes between miners, and helped settle issues between abutting land owners arrising from the land ordinance of 1785.

The Mining Act of 1866 was written by Senator William Morris Stewart of Nevada. Senator Stewart was a mining legend and a fearless man who served as acting Attorney General of California before serving 29 years in the US Congress representing Nevada. He spent a majority of his adult life as a lawyer litigating mining disputes and developed the first mining laws during his position as acting Attorney General of California. He was a fundamental contributor to the Reconstruction Era as the author of the 15th Amendment to the US Constitution which gave newly freed slaves the right to vote.