Determination of highway rights-of-way on federal lands.

WORKING DRAFT
2013
STATE OF
WYOMING
13LSO-0433.E1

HOUSE BILL
NO.
HB0182

Determination of highway rights-of-way on federal lands.

Sponsored by:
Representative(s) Kroeker, Eklund, Hunt, Jaggi, Miller and Winters and Senator(s) Barnard, Cooper and Hicks

A BILL

for

AN ACT relating to
highways; establishing the right of counties to
determine
highway rights-of-way on specified federal lands; providing definitions; requiring notice; providing for judicial review;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S.
2
4
‑
16
‑
101 through
24
‑
16
‑
107
are created to read:

CHAPTER 16
COUNTY ROAD RIGHTS-OF-WAY ON FEDERAL LANDS

24
‑
1
6
‑
101.

R.S.

2477 Rights
-
of
-
way act.

The legislature finds that many existing highways have been previously
established
over federal public lands without an official grant of an easement or right
-
of
-
way, yet these highways are often the only access to private and state public lands. The legislature recognizes that highways provide tangible benefits to private and state public lands by providing access, allowing development and facilitating production of income. The legislature intends to establish a means for ensuring continued access to the private and public lands of the state for the good of the people.

24
‑
16
‑
102.

Definitions.

(a)

As used in this act:

(i)

"Board" means the board of county commissioners in any county in this state;

(ii)

"R.S.

2477 right-of-way" means a
highway
right-of-way on federal public lands not reserved for public use
which would have been recognized by
revised statute 2477, 43 U.S.C. 932, prior to its repeal on
October 21, 1976;

(iii)

"Public lands not reserved for public uses" means the surface of federal lands open to entry and location and includes the surface of lands that are subject to subsurface coal withdrawals or mining claims;

(iv)

"Recorded dominant estate ownership claim" means an interest in the property over which the right-of-way runs which is dominant to the right-of-way;

(
v)

"This act" means
W.S. 24
‑
16
‑
101 through 24
‑
16
‑
107
.

24
‑
16
‑
103.

R.S.

2477 determination; agreements.

(a)

Any board may adopt as a valid highway right-of-way a
n
R.S.

2477 right-of-way pursuant to the procedures outlined in this act.

(b)

Any highway right-of-way
determined
by a board under subsection (a) of this section may be
determined
without the participation of any other political entity or subdivision of the state.

(c)

The state of Wyoming need not be a party to any agreement for a highway right-of-way

determined
pursuant to subsection (a) of this section.

24
‑
16
‑
104.

Notice
.

(a)

If a board
determines
a highway right-of-way pursuant to this act, the board shall issue a
statement
which shall include:

(i)

A summary
of the reasons for entering into the highway right-of-way;

(ii)

A description of the right-of-way including the c
ounty in which it is located and
notice of where a center-line
location
description
,
derived from
global positioning s
ystem data if available, may be viewed or obtained;

(iii)

Notice that any owner of a servient estate over which the right-of-way runs and any person with a dominant estate ownership claim may file a petition with
a
district court
to determine the propriety of the right-of-way
;

(iv)

Notice that any petition challenging the right-of-way must be filed within sixty (60) days after the statement required by this section is issued.

(b)

The statement required by subsection (a) of this section shall be
published in a newspaper of general circulation in the county one (1) time per week for three (3) consecutive weeks, and if
there is no
newspaper
of general circulation,
and if
the statement shall be posted in at least three (3) places along the line of the right-of-way.

(c)

The statement required by subsection (a) of this section shall be served by certified mail upon:

(i)

The owner of the servient estate over which the right-of-way subject to the statement runs; and

(ii)

All persons having a recorded dominant estate ownership claim.

24
‑
16
‑
105.

Petition challenging right-of-way;
standing; burden of proof;
rules.

(a)

If any complaint is filed in a court of this state to challenge a right-of-way under this act,
the plaintiff shall deliver a copy of the complaint to the attorney general immediately upon filing.

(b)

Only the owner of a servient estate over which the right-of-way crosses and the owner of a competing dominant estate shall have standing to challenge a board's action to
determine
a right-of-way under this act.

(c)

Any complaint challenging the
determination
of a right-of-way under this act shall be filed no later than sixty (60) days after a board provides the notices required by W.S. 24
‑
16
‑
104.

(d)

Where a highway existed on public lands not reserved for public uses on or before October 21, 1976 and where the highway currently exists in a condition suitable for public use, the party challengi
ng a right-of-way designation u
n
d
er this act shall have the burden of proof. In all other instances, the board shall have the burden of proof.

(e
)

Any action brought to challenge a right-of-way designation under this act shall be
governed
by the Wyoming
R
ules of
C
ivil
P
rocedure.

24
‑
16
‑
106.

Recording
; requir
e
ments
.

(a)

If no petition challenging a right-of-way is timely
filed pursuant to W.S. 24
‑
16
‑
105
, or upon the final det
ermination of a court to uphold
the right-of-way
, the board
shall
reco
r
d a notice of the right-of-way together with any supporting
evidence, including affid
avits, maps or other documents, in the office of the county
clerk in the county in which the right-of-way is located.

(b)

The board shall file a certificate,
authorized
by the board and signed by its chairman, setting forth the legal description of the right-of-way in the office of the county clerk to be indexed in like manner and with like effect as if it were a conveyance of the right-of-way to the county.

24
‑
16
‑
107.

Duty to constr
uct or maintain; rights on right-of-way.

(a)

A right-of-way
determined
pursuant to this act shall not obligate the state, a county, a local government or any other political subdivision to construct or maintain any road.

(b)

A right-of-way
determined
under this act may be used in all manners consistent with Wyoming law.

Section 2.

W.S. 24
‑
1
‑
101(a) is amended to read:

24
‑
1
‑
101.

Public highways defined and established; creation by adverse possession
.

(a)

On and after January 1, 1924, all roads within this state shall be highways, which have been or may be declared by law to be state or county highways. It shall be the duty of the several boards of county commissioners, within their respective counties, prior to said date, to determine what, if any, such roads now or heretofore traveled but not heretofore officially established and recorded, are necessary or important for the public use as permanent roads, and to cause such roads to be recorded, or if need be laid out, established and recorded, and all roads recorded as aforesaid, shall be highways. No other roads, except roads located on federal public lands prior to October, 1976
which

either
provide access for a private residence or agricultural operation

shall be highways upon acceptance by the board of county commissioners of the county where the road is located
,

or are determined as rights-of-way by the board of county commissioners pursuant to W.S. 24
‑
16
‑
101 through 24
‑
16
‑
107

shall be highways unless and until lawfully established as such by official authority. Except, nothing contained herein shall be construed as preventing the creation or establishment of a public highway right-of-way with reference to state and county highways under the common-law doctrines of adverse possession or prescription either prior to or subsequent to the enactment hereof. If any such board shall resolve the creation or establishment of a public highway right-of-way based upon the common-law doctrines of adverse possession or prescription, it shall, following the filing of a plat and accurate survey required in accordance with the terms and provisions of W.S. 24
‑
3
‑
109, proceed with the publication of the proposed road for three (3) successive weeks in three (3) successive issues of some official newspaper published in the county, if any such there be, and if no newspaper be published therein, such notice shall be posted in at least three (3) public places along the line of the proposed road, which notice shall be exclusive of all other notices and may be in the following form:

To all whom it may concern: The board of county commissioners of .... county has resolved the creation and establishment of a public highway right-of-way under the common-law doctrine of prescription in that the road was constructed or substantially maintained by the (either the state or county) for general public use for a period of (ten years or longer) said road commencing at .... in .... county, Wyoming, running thence (here describe in general terms the points and courses thereof), and terminating at ....

All objections thereto must be filed in writing with the county clerk of said county before noon on the .... day of .... A.D., ...., or such road will be established without reference to such objections.

....

County Clerk

Dated .... A.D.

Section
3
.

This act is effective July 1, 2013.

(END)

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HB0182