Robert Stewart: Answer to Clear Creek Road may lie in old statutes | NevadaAppeal.com
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Robert Stewart: Answer to Clear Creek Road may lie in old statutes

Robert Stewart

There are some unanswered questions in two recent articles about Clear Creek Road in the Nevada Appeal.

On March 8, 1865, a law was enacted in Nevada providing for entry on land and payment for right of way across private land.

At the following session on March 9, 1866, the Legislature passed and governor signed a bill which explains how to close a road.

That law, which Carson City has often failed to consider, remains in the Nevada Revised Statutes as NRS 403-430. It is the proper approach to use when attempting to close a public road.

Clear Creek Road was first constructed when this area was in Carson County, Utah Territory, as a toll road under a franchise granted by the Carson County Utah Court on July 27, 1860, to Rufus Walton and to John S. Childs, authorizing them to construct a toll road from Carson City to Lake Bigler (Tahoe) via Clear Creek.

The request was granted, provided the road did not cross into California.

Under the old system of roads, prior to county and state road/highway departments, improved roads were constructed by individuals holding toll road permits granted by the court or county commissioners. The concept was that the toll franchise was valid for 10 years of active use, after which the road became a public road.

Walton’s road was not heavily used for freighting and timber hauling in the first years because the rock palisade, subsequently removed, left too narrow a passage for freight wagons to pass.

In 1866 Congress adopted a law, now known as RS2477, granting the right of way across public land for roads.

Although that law was repealed in 1976, it continues to affect rights of way granted prior to repeal. What its effect on land which was patented (deeded) out of the public domain to a settler prior to its passage in 1866 is unclear.

As noted above, Rufus Walton was granted his toll road right of way by the Utah Territorial Court in 1860. The first patent for land along Clear Creek appears to have been to John Kemen in December 1864.

All other patents issued to applicants for title to land along the creek appear to have been issued by the General Land Office or the State of Nevada after 1866.

The state automatically had title to Sec. 36 on Oct. 31, 1864,

at statehood, under the terms of the Statehood Act, relinquishing title in 1866.

I am not an attorney, but I believe the law of adverse possession would affect the road in those two small portions of the road which were purchased before 1866 and passage of RS2477.

• Robert Stewart, a Carson City resident, is a former Bureau of Land Management employee who has worked for the Nevada Division of State Lands, and is well-versed in Nevada land law.