What is a land patent without a way to reach it? Worthless.
Did you know that “legal access” is a scam term that has nothing to do with your ability to get onto your land and enjoy it?
A very important case for the right of access: United States v. 9,947.71 Acres of Land, Etc.
This is a buyer-beware story where the issues are much more complicated, go much deeper, and originate from much further back in time than first appears.
In a nutshell, we bought our patented mine and claims believing we could get to them. We relied on the professionals when they said we had access. In real estate, however, access means only the right of access; kind of like being told you have the right to own a firearm then finding out they don’t exist.
In our case, our original road existed but our right to use it was illegally hidden from us. A local told us what happened: our neighbor (a county employee who doesn’t want us crossing their property) decided to change the locks on the gate.
Why keep everyone away? Mineral trespass.
The local told us that the former owners of the adjoining claim bulldozed our tailings and used them to make an access road which is a class C felony; but how to prove it? You can also see evidence of bulldozing from theirs onto our land via satellite but the looting theory is just speculation – so far.
Complicated and vague mining laws dating back over a century have muddied the waters also.
During the mid 1800’s, America was still young and didn’t know what to do with all of the land it had “acquired”. The government also needed money in the form of gold so Congress came up with an idea: it opened up the public domain to citizens to settle and explore for minerals in exchange for land patents.
Those grants came with the implied right of access via The 1866 and 1872 Mining Acts which caused confusion with such decrees as:
And be it further enacted, that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.
This one-liner created what are known as R.S. 2477 roads that people have been fighting over ever since. Congress’ intent, however, remains clear; the act was meant to assure access to the patents they were granting at the time – otherwise, the land would be worthless. It’s logical.
I wish the law said “If you have a mineral patent, you have the right to the road leading to your property and the right to whatever access is necessary to extract the minerals forever – amen.”
Too easy. Instead, Congress used words such as “appurtenances”, “trams”, “flumes”, “ditches” and “canals” to describe access rights. Who goes to work on or in a tram or in or on a canal for God’s sake?
Apparently, you can do anything with confidence with a patented mining claim except get to it. The good news is that no one can take your right to access over an R.S. 2477 road without compensating you.
Very few people understand mining law, however – including the title insurance company and every attorney we’ve consulted. They tend to see our property as strictly real estate but mineral rights are integral in any argument that would hold up in court.
Ironically, if you own the minerals only, the law is very clear about your right to access and extract your resources.
As it is, our insurance company just looks at us and shrugs when we tell them we need a road to our mine. One time they suggested that if the thieves that stole our camping gear a month earlier could make it up the hill, we should also be able to.
But the thieves didn’t have to carry gold ore in their backpacks which is apparently what the title insurance company expects us to do in order to operate a mine. Absurd.
We need to use our road – the one the title company and the county “overlooked”. The one and only road our predecessors used to get to their/our property for over 100 years.
The road that was granted to us FOREVER by the patent.
Not to worry, though.
We’re learning fast. We are methodical. We are patient. We will not accept the status quo.
Please don’t underestimate us.
We have a mine to open. 🙂
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