Mavromatis and Before

JurisdictionColorado,United States
CitationVol. 21 No. 2 Pg. 273
Publication year1992
21 Colo.Law. 273
Colorado Lawyer

1992, February, Pg. 273. Mavromatis and Before


Vol. 21, No. 2, Pg. 273

Mavromatis and Before

by Willis V. Carpenter

In its recent, unanimous decision in City of Lakewood v. Mavromatis,(fn1) the Colorado Supreme Court discussed the history of Colorado's county road laws while deciding a recording act dispute. The Mavromatis opinion is a reminder of the frequency with which real estate lawyers encounter those long-repealed road statutes. Sometimes, they are attempting to defeat an adversary's claim to gain access to a county road through a client's property. Other times, they are trying to gain access to a remote site by proving that a county road exists. This article examines Mavromatis and offers basic information that may assist in proving or disproving the existence of a county road.

Establishing County Roads

There are numerous methods by which county roads have been or can be established. These include the following:

1) declaration as a Territorial road by the Territorial legislature;(fn2)

2) declaration of roads as being over the public domain, whether agricultural or mineral;(fn3)

3) proof that the road was open to public traffic on May 4, 1921;(fn4)

4) condemnation pursuant to the eminent domain laws;(fn5)

5) purchase or donation followed by a deed or dedication to the county;(fn6)

6) adverse use of the road for twenty years over private lands;(fn7)

7) use by the public (prior to October 21, 1976) across federal lands;(fn8) and

8) action by the board of county commissioners (prior to 1954), including actions (a) pursuant to federal and state statutes declaring a county road along section lines,(fn9) (b) on petition of freeholders under the road viewers statute(fn10) or (c) on petition of landowners offering to donate the roadway, as in Mavromatis.(fn11)

This article is confined to the mysteries of formation of county roads by action of the county commissioners prior to 1954 under the statutes referenced above in item 8.

Section Line County Roads

Before its repeal in 1976, an 1866 federal statute(fn12) authorized the acquisition of rights of way for the construction of public highways over those lands not otherwise reserved. In response to the federal law, the Colorado General Assembly in 1885 enacted a statute which permitted the county commissioners by resolution to establish a public road thirty feet on each side of any section or township line on the public domain.(fn13) From the date of the commissioners' resolution---to be attested and recorded by the county clerk and recorder---any road so laid out became a public highway.

The federal statute did not purport to dedicate public roads along section and township lines. It merely stated:

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

This grant was deemed to be an offer of dedication which could be accepted by actual public use of a road anywhere on the public domain,(fn14) including state school sections,(fn15) or by a section line road resolution of the county commissioners, adopted and recorded in accordance with the state statute.(fn16)

Pursuant to these federal and state laws, the commissioners of most of Colorado's counties adopted one or more resolutions establishing a public road thirty feet on either side of certain section and township lines on the public domain, as described in the resolutions. In some cases, the resolutions established public roads along "all" section and township lines in the county.

Korf v. Itten,(fn17) decided in 1917, holds that a homestead entry removes the land entered from the public domain. Consequently, a subsequent resolution of the county commissioners cannot establish a public road across such entered land. Even if the entryman later relinquishes the claim and the land reverts to the public domain after adoption of the road resolution, the road is not reestablished


unless a new resolution is passed thereafter by the board

Once properly established by the commissioners' resolution in this manner, the public road remains extant until vacated or abandoned by the county.(fn18) The landowner cannot defeat the presence of a public road by arguing payment of taxes to the section line or by claiming that the roadway exists only on the thirty feet on the other side of the section line and has been abandoned on the landowner's side of the line.(fn19) Abandonment is not implied by non-use(fn20) or by the failure of the county to include the road on the county road map.(fn21) Abandonment can be shown only by non-use plus intention to abandon, as evidenced, for example, by construction of an alternate route.(fn22)

Establishment by Petition Of Road Viewers


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