In 1866, Section 2477 of the Revised Statues of the United States provided: "The right of way for the construction of highways over public lands not reserved for public uses is hereby granted". It was also known as the Mining Act and the Canal Act. In 1885 an Act by the Colorado General Assembly gave the right to County Commissioners to declare any section line or township line on the public domain a public highway. On October 12, 1889, the Board of County Commissioners of Weld County declared all section and township lines on the public domain of the United States in Weld County to be public highways. This order was recorded at the Clerk and Recorders Office in Book 86 at page 273. With this order, 60’ of road right-of-way, 30’ on each side of the section or township line, came into existence as long as the land was still in the public domain as of October 12, 1889. Examples of lands not in the public domain are listed below.
Through the Railroad Acts of the 1860’s and 1870’s, railroads were given land to offset the costs of construction. The railroad was given authority over the lands including reserving the land for sale. They were given every other section, mostly odd numbered sections. They were originally given sections up to 20 miles from the main line track on each side, but later were allowed to receive extra sections for land to compensate for those sections that was already taken out of the public domain. The railroad filed a map with the General Land Office showing the sections they claimed. This Railroad Sections Map is available on the right-hand column of this page. You will notice that not all odd numbered sections were railroad sections. Since the map was filed considerably prior to 1889, the railroad sections are considered to have been taken out of the public domain and not part of the 1889 Order of the Board of County Commissioners. In Weld County, the map and the Railroad Grant that authorized the land pertained mostly to the main line tracks of the Union Pacific Railroad. Later smaller spur lines were constructed by various railroad companies. Right-of-way for these spur lines was secured by the railroad through various means, including fee simple ownership, easements and right-of-way grants with reversion clauses. There were times when all three options were used within a short distance of track.
The 1863 Homestead Act reserved sections 16 and 36 to schools. The school sections are under the authority of the State Land Office. Since this Act took place in 1863, again well ahead of the 1889 Order of the Board of County Commissioners, school sections were not part of the public domain. In 1921 a court decision stated that all roads on State/School lands prior to 1921 are public roads. Additionally, the State Land Office has granted Weld County right-of-way over and across sections in various and random townships throughout the county. In the past the State Land Office has taken the stance that if there is a road present, there is right-of-way for that road. If a road does not exist, then right-of-way will need to be granted and conveyed by the State Land Office.
The Homestead Act allowed for the public to own property by staking a claim on that property, "proving up" the claim and receiving a "Patent" or original deed for the property from the United States. The land, for the most part, had been initially surveyed with stones, pits and mounds, and charred stakes set at the section corners and quarter corners allowing for the Homesteader to accurately locate and describe his property. The act of entering onto the property, along with filing a claim was enough for some to argue that the land was no longer in the public domain at that time. Others have argued that the patent date was the date the land was removed from the public domain. A check with the BLM records will indicate the patent date for the land in question. If the patent date is before the 1889 Order of the Board of County Commissioners, the land was not part of the public domain at the time of the Order.
1. What is the road right-of-way width and where is it located?
Most of the roads in Weld County have a right-of-way width of 60 feet as provided by Colorado Statutes, unless additional right-of-way has been acquired.
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