🚀 go-pugleaf

Mark A Parsons wrote:
> 
> An interesting post which nicely explains the concept of "highway".  I wonder
> though, does all this imply that it would be unlawful to restrict the type of
> traffic on highways?  In other words, how can motorized vehicles, bikes, or
> horses be banned from certain long standing highways?

Are they?  I thought they were only banned on "freeways" which are
relatively newly built, and built with those restrictions from the
beginning.  That's part of the significance of the "Begin Freeway" "end
Freeway" signs put up on otherwise unremarkable stretches of 101 and
other roads.

-Dan

So, how do 17-mile-drive and Palo Alto park get away with gates and charging
people?

mike

--
----------------------------------------------------------------------------
  Michael Bender                                        bender@eng.sun.com
  Sun Microsystems Laboratories, Inc.                   Tel: 415-336-2955
  901 San Antonio Road
  Palo Alto, CA 94303
  Mailstop: MTV29-172
----------------------------------------------------------------------------

Good post. One quibble. You said:

>All persons, not only citizens, have a right under the U.S. 
>Constitution to use all highways. No highway can ever be 
>restricted to use by certain persons or certain classes of 
>persons.

but there is no "right to travel" in the Constitution, and I believe Supreme
Court has never discovered the right to travel to be a "fundamental liberty
interest". So, there is no per se constitutional problem with the state
legislature saying that you're not allowed to use a road, saying that only
certain persons can use a road, or even (going all the way) telling you that
you're not allowed to use any road. (For example: San Jose's teen curfew;
California Assembly Bill 1151 establishing a *statewide* daytime teen curfew.)

So the question of course is whether the state has given the people who are
putting up the gate the power to do so, and whether the state has given you
standing to stop it. Good luck!!

garry

Johnny King wrote:
> 
> Organization: PrimeNet
> Summary:
> Keywords:
> 
> In Alamo, Contra Costa County, California, one of the most
> affluent communities in the U.S., residents at the end of
> Las Trampas Road, which has been used for over 40 years by
> the public as one of the few accesses in the area to Las
> Trampas Regional Wilderness, have begun construction of an
> unlawful gate to keep the public out.
> 
> Loss of park access over roads and trails across property
> which is in private ownership, yet in public use for many
> years, is a serious problem all over the nation today.
> Developers move into an undeveloped area, build houses
> across roads and trails used to access parks by local
> residents, and effectively close the access.
> 
> In most cases this is unlawful, and could be prevented if
> only the parties involved, both the developers and the park
> users, knew the law, and the park users asserted the law.
> The following letter explains some of the questions of law
> which usually occur in such cases.  If more people knew the
> law and asserted it, more park access could be saved from
> developers.
> 
> JK
> 
> =====================
> 
> Monday, 15 September 1997
> 
> An open letter to the residents and property owners of Las
> Trampas Road concerning the gate in progress:
> 
> I am now in the process of obtaining public records, and
> contacting persons who have used the entirety of what is now
> Las Trampas Road, and beyond, for many years, and collecting
> affidavits from such persons, to be filed with the Contra
> Costa County Recorder together with a Notice of Intention to
> Preserve Interest, pursuant to Title 5 (commencing with
> Section 880.020) of Part 2 of Division 2 of the Civil Code
> (Marketable Record Title).
> 
> The evidence now available indicates that under current and
> well settled California law, the entirety of Las Trampas
> Road is what the law calls a highway, notwithstanding that
> it passes over private property. This means that it is
> unlawful for any gate to be erected to restrict the use of
> Las Trampas Road in any way, and that all persons have a
> permanent and irrevocable right to use the road at any time.
> 
> I am sympathetic to the concerns I have heard expressed on
> behalf of Las Trampas Road residents. I have been a rural
> property owner myself, and I'm all too familiar with the
> problems trespassers can cause. I know it can be difficult
> to understand why the public has a right to travel over
> private property, so here is a brief summary of the law
> creating the public right to use the entirety of Las Trampas
> Road, and on highways in general:
> 
> Because the public has used the "way" (the entirety of what
> is now Las Trampas Road and beyond) regularly and openly
> without any interference from the private owners of the land
> for so many years, it has become a "highway" under the law,
> and no person can put up any gate on it or restrict it in
> any way. Understanding why requires some background
> knowledge.
> 
> The law in California today, as in all states of the U.S.
> except Louisiana, is based on the common law of England.
> Section 22.2 of the Civil Code provides that the common law
> of England shall be the rule of decision of the courts of
> the State of California, except where it conflicts with the
> U.S. Constitution, or California Constitution, or laws
> passed by the California Legislature. When the Legislature
> doesn't pass any laws otherwise, the courts use the common
> law of England as the law of the State of California.
> Present California law on highways closely follows English
> common law, sometimes modified. For instance under common
> law, use by the public for seven years is required to create
> a prescriptive right, but under statute passed by the
> California Legislature, the period of time is five years,
> rather than seven.
> 
> In the terms used in the law, a "way" is any way used for
> travel, as in, "Get out of the way". A way can be over land
> or water, it can be major or minor. It can be a foot trail,
> a dirt road, gravel road or paved road, a navigable
> waterway. It makes no difference. There are two kinds of
> ways, "private ways" and "highways". A highway is any way
> used by the public for travel or transportation by any
> means, including motorized or non-motorized means. A public
> footpath is a highway as well as a ten lane freeway. The law
> makes no distinction among highways of different kinds, and
> gives equal sanctity and protection to the largest and the
> smallest. All highways are public and there are no private
> highways, so the term "public highway" is redundant.
> 
> Who owns title to the land over which it passes, or who
> maintains the roadway of a highway, has no effect on its
> status as a highway, or the public's right to use it, and
> the ownership of title to land over which a highway passes
> conveys no right to regulate or restrict a highway in any
> way.
> 
> All persons, not only citizens, have a right under the U.S.
> Constitution to use all highways. No highway can ever be
> restricted to use by certain persons or certain classes of
> persons.
> 
> Highways are created in two ways, "dedication", and "implied
> dedication", sometimes erroneously referred to as
> "prescription". Dedication occurs when the state or one of
> its subdivisions sets aside public land for use as a
> highway. The public land can be that already owned by the
> state, or purchased on the open market, or condemned through
> the state's power of imminent domain.
> 
> Implied dedication is like prescription, which is the
> process of acquiring a right to someone else's land, either
> to travel over it, or to use it in other ways, or even to
> have title to it, simply by using it openly for a certain
> number of years, historically seven years, five by
> California law.
> 
> Implied dedication is the same as prescription in that it
> causes a right to be created when someone uses someone
> else's land, but prescription is when a right is created by
> use by one person, or certain persons, which favors only
> those persons, and implied dedication is when the use, and
> the right created by it, is by and for the public at large.
> "Private easements" are created over private land by
> prescription. Highways are created over private land by
> implied dedication. Prescription and implied dedication,
> which convey "prescriptive rights" can only occur on private
> land, not on public land. By provisions of California law
> enacted by the Legislature, no use of public land can ever
> create any prescriptive right.
> 
> Once a highway has been created, it can only be extinguished
> by a process called "vacation", where a public "vacation
> hearing" is held before the governing board of the city or
> county which has jurisdiction, and it must be determined
> that the highway is no longer needed.
> 
> A highway is not a road or a roadway, a physical thing. A
> highway is an intangible interest in real property, a public
> right, a public easement, and who owns title to the land
> over which a highway passes is irrelevant to its use.
> Highways can pass over public land or private land.
> 
> Because highways are essential to travel and communication
> and commerce, and because they are the matrix of
> civilization itself, they enjoy the highest sanctity and
> protection of the laws. Historically most highways were
> created not by official dedication, but by common use. Once
> in common use for some time, the potential disruption in the
> functions of society caused by a highway's interruption can
> be not only a public nuisance but a public crisis. For this
> reason the law gives very great weight to long common use of
> a way by the public, even putting it above the property
> rights of the owner of the title to the land.
> 
> So, notwithstanding the fact that it is private property, or
> who paid for improvements to the road or built the roadway,
> the fact that the public have been traveling the route of
> present Las Trampas Road freely, "openly and notoriously",
> "adverse to the interest of the owner", in the terms of the
> law, for so many years, has created a public easement, a
> highway, and no one may restrict it in any way, any more
> than anyone may restrict Highway 680.
> 
> I repeat my request that if you dispute the prescriptive
> rights asserted above, and assert a contrary right under law
> to erect a gate on Las Trampas Road, that you have your
> attorney provide me with citations to supporting authority
> in the law, and probative facts, or evidence such as a
> recorded notice of use by permission and control of owner,
> pursuant to Sec.813 Civil Code. Anyone who erects any gate
> on any road should be prepared to do this readily and
> without hesitation.
> 
> It was alleged that one park user spoke to a resident about
> the gates, and said something like, "Well what about my use
> of the road?", to which the resident allegedly responded
> something to the effect of "That's your problem, isn't it".
> This is the kind of thing people say when they think they
> hold all the cards. But this is a mistake, and just the
> reverse of what this resident thinks is true.
> 
> Looking at the situation from the same selfish "that's your
> problem" attitude allegedly exhibited by the resident above,
> one finds that the present developer and the present
> homeowners bought and improved property with an existing
> highway over it, a permanent and irrevocable easement.
> 
> Such an unrecorded encumbrance on the property is just as
> binding as any recorded encumbrance, and it is the buyer's
> obligation to use due diligence to discover such
> encumbrances, both recorded and unrecorded, particularly
> when such clear evidence exists, as an obviously well-and-
> regularly-traveled way. The existence of such a well-and-
> regularly- traveled way gives the buyer constructive
> knowledge of the probability of a prescriptive easement, and
> a buyer who ignores such evidence does so at his peril.
> 
> The developers here built a subdivision along a public way
> people use to reach a public park, and which people would be
> expected to continue to use because they had a right by law
> to do so, and the developers failed to provide the
> corresponding "additional width [of roadway] to accommodate
> reasonably expected on-street parking" required by paragraph
> 5.A., Conditions of Approval for Subdivision 6419, as
> approved by the San Ramon Valley Area Planning Commission,
> 15 February 1984.
> 
> Using the same selfish attitude allegedly exhibited by the
> homeowner above, in response to homeowners' complaints about
> the problems caused by the public's use of the road, it
> could be said, "That's your problem, you built (or bought)
> on a public thoroughfare, at the existing public entrance to
> a public park, and you didn't build your road wide enough to
> accommodate reasonably expected public parking, in violation
> of the Conditions of Approval for Subdivision 6419".
> 
> But there are legitimate conflicting interests here, and
> good people on both sides. The best resolution of the
> conflict should rely on good faith communication and
> cooperation, and compromise from all parties.
> Notwithstanding that such a gate may be strictly unlawful,
> if no one objects to such a gate, it may remain. This is a
> community problem, that may be resolved to the satisfaction
> of all parties with communication and cooperation, but
> confrontation may result in neither a gate, nor relief from
> the problems.
> 
> In conclusion, I ask you to please consider this as a
> community problem which needs to be addressed by consensus,
> rather than unilateral action, and meet and negotiate in
> good faith with interested parties, to reach that consensus.
> 
> Sincerely,
> 
> John L. King

	John,

	Oooh!  You have a good one!  Don't let those hosers get away with
putting up that gate.  It's not your problem, it's theirs.
	We have a similar problem with riding up and down Cache Creek, in Yolo
County that may or may not develop.  Some folks are putting fences with
"No Trespassing" signs across a "Riparian Waterway" which is also used
as a "Highway".  Heh, heh.  The current solution is to carry a "fence
tool" which is the next best thing to a pair of bolt cutters.  If a
fence across a "Riparian Waterway" is encountered it is CUT!  I am
waiting for someone to catch me doing this, call the sheriff and have me
arrested.  Then the fun begans.
	A word about my background may be in order.  I am a DOT certified
Driver Trainer / Accident Investigater for our local transit bus
outfit.  One of my hobbies is getting drivers who get "chickenshit"
tickets "off the hook".  I have a fairly high success rate.  So, tell me
that I can't ride my horse on a "Public Highway".  
	Please keep us advised as to how it's going.  I will do the same.

	Jim
	Quia "Credo" Absurdum

An interesting post which nicely explains the concept of "highway".  I wonder
though, does all this imply that it would be unlawful to restrict the type of
traffic on highways?  In other words, how can motorized vehicles, bikes, or
horses be banned from certain long standing highways?

-m.

In article <5vpgtc$a93@nntp02.primenet.com>, Johnny King <johnnyk@primenet.com> writes:
> 
> In Alamo, Contra Costa County, California, one of the most 
> affluent communities in the U.S., residents at the end of 
> Las Trampas Road, which has been used for over 40 years by 
> the public as one of the few accesses in the area to Las 
> Trampas Regional Wilderness, have begun construction of an 
> unlawful gate to keep the public out.
> 
> Loss of park access over roads and trails across property 
> which is in private ownership, yet in public use for many 
> years, is a serious problem all over the nation today.  
> Developers move into an undeveloped area, build houses 
> across roads and trails used to access parks by local 
> residents, and effectively close the access.
> 
> In most cases this is unlawful, and could be prevented if 
> only the parties involved, both the developers and the park 
> users, knew the law, and the park users asserted the law.  
> The following letter explains some of the questions of law 
> which usually occur in such cases.  If more people knew the 
> law and asserted it, more park access could be saved from 
> developers.

Having experienced a right of way problem when we first moved up here, 
it seems that if this trail has been used for 40 years and the 
developer builds on it, the users have the right to continue using
it as they have in the past.

If the developer doesn't like it, he will have to take you to court.
Most likely, the developer won't care -- so won't bother.

What is most likely is that the new owners will object and they will
be the ones taking you to court.  My guess is that, when this happens,
they will also name the developer in the suit, making the developer
a defendant, too.  It will be less expensive for you to have them
somewhat on your side, rather than trying to fight them (and their
money) directly.  In this case, both you and the new owners will
be showing that the developer knew that there was an existing ROW
through the property.  The developer will be trying to show that they
had no way of knowing that there was a ROW.

Simply inform the developer, now, that there is a ROW.  Do it in writting.
Also send a copy to the planning department involved.

They would be foolish to continue without accomodating the ROW.
--
Do not underestimate your abilities.  That is your boss's job.
It is your job to find ways around your boss's roadblocks.
_______________________________________________________________
Glen Appleby  glena@mail.cruzio.com  http://www2.cruzio.com/~glena/

bender@Sun.COM (Michael Bender) wrote:

>So, how do 17-mile-drive and Palo Alto park get away with gates and charging
>people?

because 17 mile drive has ALWAYS been private property, it was built as
a private toll road originally.

-jrp
----------------------------------------------------------------------
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So, how many people constitute "the public"? For example, if I walk through a
section of private property every day for 5 years and the owner of the
property doesn't ever say anything to me or put up any kind of "No
Tresspassing" signs, does that make my path an implied easement, since I am
a member of the public?

mike

--
----------------------------------------------------------------------------
  Michael Bender                                        bender@eng.sun.com
  Sun Microsystems Laboratories, Inc.                   Tel: 415-336-2955
  901 San Antonio Road
  Palo Alto, CA 94303
  Mailstop: MTV29-172
----------------------------------------------------------------------------

Mark A Parsons <parsons@kryos.colorado.edu> wrote:
: An interesting post which nicely explains the concept of "highway".  I wonder
: though, does all this imply that it would be unlawful to restrict the type of
: traffic on highways?  In other words, how can motorized vehicles, bikes, or
: horses be banned from certain long standing highways?

An important constitutional question ripe for being addressed by the
courts, in the often arbitrary exclusion of horse or bicycle riders from
trails, which are highways under the law.

The Supreme court has held that the constitution is interpreted in light
of the common law, and in common law all persons have a right to travel by
all reasonable and customary means.

The Supreme Court has held that any restriction of a fundamental interest
(constitutional right), can only be done for a "compelling state
interest", and that the courts must examine the reasons the state offers
for a "compelling state interest" with "strict scrutiny", where "the state
has a heavy burden of proof to justify the restriction".

Accordingly, an arbitrary restrition of forms of travel is
unconstitutional.

Contrary to the California DMV's slogan, "Driving is a privilege, not a
right", driving is a right, not a privilege.  It is a right which the
state has a compelling state interest to disqualify you from if you're too
young, physically incapable, abuse the right, but in the absence of a
legitimate disqualifying factor, the state MUST grant you a driver
license, and cannot refuse to do so arbitrarily, as it could if it were a
privilege. A privilege can be refused for any reason, or no reason.

Refusal of a right must withstand the "strict scrutiny" of the court,
where "the state has a heavy burden of proof to justify the restriction".



=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

Daniel Veditz <dveditz@netscape.com> wrote:
: Mark A Parsons wrote:
: > 
: > An interesting post which nicely explains the concept of "highway".  I wonder
: > though, does all this imply that it would be unlawful to restrict the type of
: > traffic on highways?  In other words, how can motorized vehicles, bikes, or
: > horses be banned from certain long standing highways?

: Are they?  I thought they were only banned on "freeways" which are
: relatively newly built, and built with those restrictions from the
: beginning.  That's part of the significance of the "Begin Freeway" "end
: Freeway" signs put up on otherwise unremarkable stretches of 101 and
: other roads.

Only constitutional if there are reasonable alernate routes.



=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

Johnny King wrote:

> In Alamo, Contra Costa County, California, one of the most
> affluent communities in the U.S., residents at the end of
> Las Trampas Road, which has been used for over 40 years by
> the public as one of the few accesses in the area to Las
> Trampas Regional Wilderness, have begun construction of an
> unlawful gate to keep the public out.

The trail map for Las Trampas shows a trail easement to Las Trampas
Road. As I am unfamiliar with this issue, unfortunatly one of many such
issues in the area, my first question - is the EBRPD aware of the
situation and if so what is thier position. 
-- 
Anti-Spam Alert: To Reply Remove the *Top*

Trails of The Diablo Valley 
*Running - Hiking - Nature* 
http://travel.to/diablo-valley-trails

Garry W <gnews3@ithaca.com> wrote:
: Good post. One quibble. You said:

: >All persons, not only citizens, have a right under the U.S. 
: >Constitution to use all highways. No highway can ever be 
: >restricted to use by certain persons or certain classes of 
: >persons.

: but there is no "right to travel" in the Constitution, and I believe Supreme
: Court has never discovered the right to travel to be a "fundamental liberty
: interest". So, there is no per se constitutional problem with the state
: legislature saying that you're not allowed to use a road, saying that only
: certain persons can use a road, or even (going all the way) telling you that
: you're not allowed to use any road. (For example: San Jose's teen curfew;
: California Assembly Bill 1151 establishing a *statewide* daytime teen curfew.)

In sorry Gary, but that's dead wrong, and you shouldn't say things
like that when you don't know what you're talking about.

The Supreme Court has most certainly found that travel is a
constitutionally protected right, a "fundamental interest":

"Although not explicitly mentioned in the federal constitution, the right
freely to travel from one state to another and necessarily to use the
highways is a basic right under the constitution".  United States vs.
Guest (1965) 383 U.S. 745, 16 L.Ed.2d 239, 86 S.Ct.  1170, Shapiro vs.
Thompson (1966) 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct.  1322.

"The constitutional right to travel between states implies a correlative
constitutional right to travel within a state".  In Re White (1979) 97
Cal.App.3d 141, 158 Cal.Rptr. 562. 

"A citizen has a basic constitutional right to intrastate as well as
interstate travel".  People vs. Beach (1983) 147 Cal.App.3d 612, 195
Cal.Rptr. 381.

"Since the right to travel is a constitutionally protected right, any
classification which serves to penalize the exercise of that right, unless
shown to be necessary to promote a compelling governmental interest, is
unconstitutional".  Dunn vs. Blumstein (1971) 405 U.S. 330, 31 L.Ed.2d
274, 92 S.Ct. 995.

Michael Bender <bender@Sun.COM> wrote:
: So, how many people constitute "the public"? For example, if I walk through a
: section of private property every day for 5 years and the owner of the
: property doesn't ever say anything to me or put up any kind of "No
: Tresspassing" signs, does that make my path an implied easement, since I am
: a member of the public?

By common law, and former California law, this creates a private
prescriptive easement in your favor. However California law has changed.

In 1971 the Legislature passed an act intended to encourage private owners
of large parcels of land to allow the public to enter their lands for
recreational purposes, to reduce the load on public recreational
resources.  It provided that if the owner allowed such use of his
property, he was almost completely immune from liability for damages from
such use, creating the interesting situation where a landowner who puts up
no tresspassing signs and tries to keep people out is more likely to be
liable for damages to someone whe steps in a hole and breaks their leg,
than a person who allows people to use their land for recreation.  A
potential objection of the land owners to this legislation was if people
used the land for five years they would acquire prescriptive rights.  To
address this potential objection, the Legislature provided that after the
effective date of the act (1 January 1972), no such use would ever mature
into a prescriptive right, effectively eliminating the creation of any
such new prescriptive rights.  So any use alleged to create such a
prescriptive right must have been for a period of time of 5 years or more
prior to 1 January 1972.

A permissive use of land does not create any prescriptive right.  That's
why you see signs, "Right to pass by permission and control of owner,
revocable at any time.  Sec.1008 Civil Code".  This prevents




=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

This is a very good explanation, but it's very different from anything
I've understood.

I own property in NE Alabama, in a sparsely-settled county.  In that
county, if several people share a road on private property, they request
of the country that the road become public property.  At that point,
they loose the right to deny access, but gain free road work, sometimes
even a paved surface.  At the same time, if a road is no longer being
used by several families, or if alternative routes exist and the county
no longer considers the cost justifiable, the county will close the road
-- I believe after a public hearing -- and the owner is then free to
erect no-tresspassing signs, which almost always happens, as a few
individuals will try to continue to use the road (in cases where no
signs have been erected, the roads remain passable to four-wheel drives
for many years).  Certainly, people with property along such an
abandoned road could still assert their use of the right-of-way; other
people can pass only if the owner doesn't mind.   A friend of mine owned
property with a road his family constructed traveling through it to a
popular "beach" on a river.  When people started using the road to dump
trash, he closed it, and then he had people arrested who broke down his
gate.  They argued that the road was public right-of-way since it had
been in use for many years; he argued that it terminated on his property
on the river, and the river was not a navigatable stream, and won.

Thus, I would tend to identify a public road by who was paying for it. 
Your clarification would be helpful.

Johnny King wrote:

> 
> The Supreme court has held that the constitution is interpreted in light
> of the common law, and in common law all persons have a right to travel by
> all reasonable and customary means.
> 
> The Supreme Court has held that any restriction of a fundamental interest
> (constitutional right), can only be done for a "compelling state
> interest", and that the courts must examine the reasons the state offers
> for a "compelling state interest" with "strict scrutiny", where "the state
> has a heavy burden of proof to justify the restriction".
> 
> Accordingly, an arbitrary restrition of forms of travel is
> unconstitutional.


Which makes me wonder why the International Mountain Bike Association, other
bike advocacy groups, or ATV or equestrian advocacy groups haven't brought
forth the case.  I also wonder what would constitute a "compelling state
interest" in this case, especially since many of the restrictions are imposed
by local not state governments.

Does anybody know of a situation where IMBA or someone similar has tried this
tack to reopen or prevent closure of trails?  This could really be a Pandora's Box.

-m.

The Trailrunner <TheTrailhead*Top*@letterbox.com> wrote:
: The trail map for Las Trampas shows a trail easement to Las Trampas
: Road. As I am unfamiliar with this issue, unfortunatly one of many such
: issues in the area, my first question - is the EBRPD aware of the
: situation and if so what is thier position. 

The East Bay Regional Park District is aware of the sitution and working
to oppose the gate, but public agencies as a rule don't assert
prescriptive rights.



=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

Ken Kifer <kenkifer@simplecom.net> wrote:
: This is a very good explanation, but it's very different from anything
: I've understood.

: I own property in NE Alabama, in a sparsely-settled county.  In that
: county, if several people share a road on private property, they request
: of the country that the road become public property.  At that point,
: they loose the right to deny access, but gain free road work, sometimes
: even a paved surface.  At the same time, if a road is no longer being
: used by several families, or if alternative routes exist and the county
: no longer considers the cost justifiable, the county will close the road
: -- I believe after a public hearing -- and the owner is then free to
: erect no-tresspassing signs, which almost always happens, as a few
: individuals will try to continue to use the road (in cases where no
: signs have been erected, the roads remain passable to four-wheel drives
: for many years).  Certainly, people with property along such an
: abandoned road could still assert their use of the right-of-way; other
: people can pass only if the owner doesn't mind.   A friend of mine owned
: property with a road his family constructed traveling through it to a
: popular "beach" on a river.  When people started using the road to dump
: trash, he closed it, and then he had people arrested who broke down his
: gate.  They argued that the road was public right-of-way since it had
: been in use for many years; he argued that it terminated on his property
: on the river, and the river was not a navigatable stream, and won.

: Thus, I would tend to identify a public road by who was paying for it. 
: Your clarification would be helpful.

Two things first.  One, my essay was aimed at a situation covered by
California law, and the state statutes which may supercede provisions of
common law vary from state to state.  For instance the provisions you
cited about making the road public, and then closing it, are apparently
provsions of Alabama statutes, just as the method of extinguishing a
highway with a "vacation hearing" which I cited previously is a provision
of California statute.

Second, as for "They argued that the road was public right-of-way since it
had been in use for many years; he argued that it terminated on his
property on the river, and the river was not a navigatable stream, and
won", every case of a presecriptive right being asserted is different,
with many different circumstances, so without knowing all the facts I
can't comment.

It could be that the facts of the case as they actually are should have
resulted in a finding that the road was a highway, but often the necessary
evidence is very difficult and time-consuming and expensive to produce in
court, such as lengthy investigations to find persons with the
historical experience with the way, and time-consuming interviews to
determine the actual historical facts and reconcile them with other
testimony, and prepare them in proper legal form.  It's easy to botch the
job through inexperience or insufficient resources.

Also, the local courts which first hear such cases and hand down the first
rulings often err, and only on appeal to higher courts, which can be
prohibitively expensive for some parties, does a proper ruling under the
law result.

As for defining a public road solely by who is paying for it, there is no
reason why any state can't pass statutes, defining what is a public road,
which completely supercede common law and are entirely different from it's
provisions, as long as they don't violate basic constitutinal rights.

For anyone wanting to read more about this, I recommend going to your
local law library, and reading the article on "Highways" in Corpus Juris
Secundum.  The librarian can help you find it if necessary.  This gives an
analysis of the common law.  Then read in your local state's highway codes
for those statutatory provisions which may vary from common law.



=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

Mark A Parsons <parsons@kryos.colorado.edu> wrote:
: Johnny King wrote:

: > 
: > The Supreme court has held that the constitution is interpreted in light
: > of the common law, and in common law all persons have a right to travel by
: > all reasonable and customary means.
: > 
: > The Supreme Court has held that any restriction of a fundamental interest
: > (constitutional right), can only be done for a "compelling state
: > interest", and that the courts must examine the reasons the state offers
: > for a "compelling state interest" with "strict scrutiny", where "the state
: > has a heavy burden of proof to justify the restriction".
: > 
: > Accordingly, an arbitrary restrition of forms of travel is
: > unconstitutional.


: Which makes me wonder why the International Mountain Bike Association, other
: bike advocacy groups, or ATV or equestrian advocacy groups haven't brought
: forth the case.  I also wonder what would constitute a "compelling state
: interest" in this case, especially since many of the restrictions are imposed
: by local not state governments.

I share you feelings on this intensely, and have tried to promote such
advocacy, and am just as baffled as you why there is no such response.  In
my experience, people, and even attorneys who should know better, are so
conditioned to thinking of recreation as "playing", and trails as
"playthings", that they can't see past the conditioning to see that trails
are highways, and people who use them are not just engaged in a frivolous
recreational activity, but are exercising a constitutionally protected
right.  Constitutional law holds explicitly that travel for business or
for pleasure is equally protected under the constitution.

I believe that a properly presented case on the issue would result in a
ruling that trails can't be arbitrarily restricted from horse riders or
bicycle riders, and that the state must have a compelling state interest
to do so, which in most current cases it most certainly does not.


=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

jjjjcdill@ix.netcom.com (JCDill) wrote:
>Can the state refuse one the right to ride a bicycle on a public
>highway, person by person (rather than by a class such as is done on
>freeways for safety of all)?  Can the state claim a compelling state
>interest to disqualify a single person from riding a bicycle on a
>street where other bicycles are allowed?

Of course. As you say, that's what they do for car driving. If they wanted to,
the state could license "bicycle driving" in the same way, for example making
sure you're fit and able, have good eyesight, had paid your "bicycle taxes",
had bicycle insurance, etc. 

But fortunately they haven't actually done that yet.

I don't grasp the point you're trying to make.

?

garry

PS - "Compelling state interest" I don't think is the right test, by the way.
Bearing a "rational relation" to a valid state goal -- ie., public health,
welfare or safety -- would probably be all that it takes. (But see the thread
about the "right to travel".)

Garry W <gnews3@ithaca.com> wrote:
: PS - "Compelling state interest" I don't think is the right test, by the way.
: Bearing a "rational relation" to a valid state goal -- ie., public health,
: welfare or safety -- would probably be all that it takes. (But see the thread
: about the "right to travel".)

The law is well settled that if there is *any* conceivable reason (ie.,
public health, welfare or safety, in your words) which could justify
legislative action, the courts will not *even* look into the reasons, much
less weigh them and judge them (separation of powers) *unless* the
legislative action affects a fundamental interest (constitutional right),
and then the standard which is required to be used is strict scrutiny,
where the court looks into the reasons thoroughly, and weighs them
carefully, and the state has a heavy burden of proof to justify the
restricitons.


=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

JCDill <jjjjcdill@ix.netcom.com> wrote:
: "Driving" a motor vehicle is a privilege, using the public highway is
: a right.  

See my previous post.  It seems people are using different definitions of
"right" and "privilege".

: One has the right to lawfully use the public highway, such
: as lawfully riding a bicycle or lawfully driving a horse and carriage.
: One doesn't have the right to operate a motor vehicle on public land
: without having first obtained the necessary license.

This is true, but it does not make driving a privilege (something
which can be granted or denied arbitrarily, for any reason, or for
no reason) instead of a right (which can be denied, but only for
compelling state interest).

Driving is a right (in that it cannot be denied except for compelling
state interest) and not a privilege (in that it cannot be denied
arbitrarily, for any reason or for no reason).

: AFAIK there are NO privileges that the state can grant or deny
: arbitrarily, there must always be a compelling factor to all state
: actions, as these actions are taken against an individual by "us"
: collectively in the name of the state.

No, it is well settled in the law that this is not true.  The topic is
rather large, but it is not true that *all* state actions must be for
"compelling state interest" as that term has been defined in
constitutional law.

: Can the state refuse one the right to ride a bicycle on a public
: highway, person by person (rather than by a class such as is done on
: freeways for safety of all)?  Can the state claim a compelling state
: interest to disqualify a single person from riding a bicycle on a
: street where other bicycles are allowed?

Yes, the state can disqualify certain classes of persons, or any person,
or a single person, from riding bicycles on the highways, but only for
complelling state interest.



=======================
johnny king
northern california usa
johnnyk@primenet.com
=======================

On 19 Sep 1997 02:08:00 -0700, in ba.mountain-folk, Johnny King
<johnnyk@primenet.com> shaped the electrons to say:

>Mark A Parsons <parsons@kryos.colorado.edu> wrote:
>: An interesting post which nicely explains the concept of "highway".  I wonder
>: though, does all this imply that it would be unlawful to restrict the type of
>: traffic on highways?  In other words, how can motorized vehicles, bikes, or
>: horses be banned from certain long standing highways?
>
>An important constitutional question ripe for being addressed by the
>courts, in the often arbitrary exclusion of horse or bicycle riders from
>trails, which are highways under the law.
>
>The Supreme court has held that the constitution is interpreted in light
>of the common law, and in common law all persons have a right to travel by
>all reasonable and customary means.
>
>The Supreme Court has held that any restriction of a fundamental interest
>(constitutional right), can only be done for a "compelling state
>interest", and that the courts must examine the reasons the state offers
>for a "compelling state interest" with "strict scrutiny", where "the state
>has a heavy burden of proof to justify the restriction".
>
>Accordingly, an arbitrary restrition of forms of travel is
>unconstitutional.
>
>Contrary to the California DMV's slogan, "Driving is a privilege, not a
>right", driving is a right, not a privilege.  It is a right which the

"Driving" a motor vehicle is a privilege, using the public highway is
a right.  One has the right to lawfully use the public highway, such
as lawfully riding a bicycle or lawfully driving a horse and carriage.
One doesn't have the right to operate a motor vehicle on public land
without having first obtained the necessary license.

>state has a compelling state interest to disqualify you from if you're too
>young, physically incapable, abuse the right, but in the absence of a
>legitimate disqualifying factor, the state MUST grant you a driver
>license, and cannot refuse to do so arbitrarily, as it could if it were a

AFAIK there are NO privileges that the state can grant or deny
arbitrarily, there must always be a compelling factor to all state
actions, as these actions are taken against an individual by "us"
collectively in the name of the state.

>privilege. A privilege can be refused for any reason, or no reason.
>
>Refusal of a right must withstand the "strict scrutiny" of the court,
>where "the state has a heavy burden of proof to justify the restriction".

Can the state refuse one the right to ride a bicycle on a public
highway, person by person (rather than by a class such as is done on
freeways for safety of all)?  Can the state claim a compelling state
interest to disqualify a single person from riding a bicycle on a
street where other bicycles are allowed?


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