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![handle is hein.sag/sagnd0008 and id is 1 raw text is: LETTER OPINION
2009-L-01
January 5, 2009
Mr. Dennis Edward Johnson
McKenzie County State's Attorney
PO Box 1288
Watford City, ND 58854-1288
Dear Mr. Johnson:
Thank you for your letter asking about North Dakota's section line rights-of-way. For the
reasons below, it is my opinion that: (1) while there is a relationship between the
right-of-way and the 1866 federal statute granting access across public land, the
right-of-way is not founded solely on nor governed solely by that federal statute; (2) the
right-of-way is not conditioned on a practical-for-travel test; and (3) the right-of-way applies
to just one side of a section line if on the other side the right-of-way never attached, has
terminated, or is otherwise not in effect.
ANALYSIS
Section Line Right-of-Way - Origin
There are two primary sources for the public's right to travel section lines, a state statute
and an 1866 federal statute. Their applicability depends on factual circumstances,
including the ownership history of the underlying land. Depending on that history, the
1866 federal statute may provide a better source for the right-of-way, or the state statute
may be the more applicable; and, it is possible that both could apply.
In 1866 Congress allowed roads on the public domain: [T]he right of way for the
construction of highways over public lands, not reserved for public uses, is hereby
granted.' This law was codified as Section 2477 in the 1873-74 Revised Statutes and is
known as R.S. 2477.2 It was enacted when the government encouraged exploitation of
1 Act of July 28, 1866, ch. 262, § 8, 14 Stat. 251, 253 (codified at 43 U.S.C. § 932),
repealed by 90 Stat. 2743, 2793 (1976) (codified at 43 U.S.C. §§ 1701-1785).
2 U.S. 1873-74 Rev. Stat. § 2477.](ViewImageLocal?handle=hein.sag/sagnd0008&div=1&collection=&method=preview&ext=.png&size=3)