The legality of closing roads

Here in the Pacific Northwest, we have lots of land. There is nothing more frustrating than finding your over-land shortcut has run you into a locked gate. If it is on private land, there is not much you can say, but on public lands the public should always have the right of way. The BLM disagrees and now is in the process of removing our public right of ways on western lands in areas that are soon to be designated as wilderness or monument. They are doing this by closing public roads. Even the king was not allowed to close public roads!

There is however a supreme court decision that affects this situation - NEW ORLEANS V. UNITED STATES, 35 U. S. 662 :: Volume 35 :: 1836 :: Full Text :: US Supreme Court Cases from Justia & Oyez

APPEAL FROM THE DISTRICT COURT OF

THE UNITED STATES FOR EAST LOUISIANA

Syllabus

The United States alleged, by a petition presented to the district Court of the United States for the District of Louisiana, that by the treaty of cession of the late province of Louisiana, the United States succeeded to all the antecedent rights of France and Spain as they then were, in and over the province, the dominion and possession thereof, including all lands which were not private property, and that certain lots and vacant lands in front of the City of New Orleans, which the petition asserted passed to the United States by the cession, had by an ordinance of the city been directed to be sold for the use of the city. The petition prayed that the City of New Orleans should be perpetually enjoined from selling the same or doing any other act which shall invade the rightful dominion of the United States over the said land or their possession of it. The City of New Orleans claimed the ground which lies between the line of the front houses of the city and the River Mississippi:

First, as having been left by the King of France as quays for the use and benefit of the city.

Second, because if since the foundation of the city the space of ground became wider than was necessary for the use of the city as quays, it was occasioned by alluvial deposits in front of the city in consequence of works erected by the inhabitants at the expense of the city to advance the levee in front on the river.

Third, because by the laws of Spain, in force when the alluvions were formed in front of the city, such formations belonged to the inhabitants of the cities, who may dispose of the same as they may think convenient, on their leaving what is necessary for the public use.

The District Court of Louisiana ordered the perpetual injunction as prayed, and that decree was reversed on appeal.

In order to dedicate property for public use in cities and towns and other places, it is not essential that the right to use the same shall be vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large.

The principles upon which the case of City of Cincinnati v. White, 6 Pet. 431, and the case of Barclay v. Howell, 6 Pet. 498, were decided examined and affirmed.

If buildings had been erected on lands within the space dedicated for public use, or grants of part of the same have been made by the power which had authority to make and had made a dedication of the same to public use, the erection of the buildings and the making of the grants would not be considered as disproving the dedication, and the grants would not affect the vested rights of the public.

The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory, and as he is also without remedy for his loss in this way, he cannot be held accountable for his gain. This rule is no less just when applied to public than to private rights.

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