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Lucy, Esq., Attorney
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I have a non-patented mining claim on Federal land, which the

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I have a non-patented mining claim on Federal land, which the only vehicle access too, is across a patented claim. These were mines operated in the 1890's-1915. The owner of the patented claim does not want to let me cross his property on the existing road to access my claim. Do I have a right to do so?
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Customer: replied 5 years ago.
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There is not an automatic right to cross someone's land to reach your own. However, there are several ways to gain such a right. There are two types of rights to cross land - one is called a license, which is oral, and the other is an easement. A license simply occurs when someone says, "Yes, you can cross my property," and that can be revoked at any time. An easement is in writing, and it can not be unilaterally revoked by the person who owns the land - it's a contract. The starting point here may be the property records - an easement has to be recorded with the Registry of Deeds. If there's already one there, even if the agreement was made with a prior owner, it transfers with the land, so it's still valid. You can cross the land in that case.

Otherwise, you have a few options.
1. You can negotiate with the owner and purchase the right to cross his land, then get a written contract and record it with the county. It's between the two of you to determine a fair price, but you may need to bring in some experts. The holder of the easement, which would be you in this scenario, usually is required to pay for the upkeep of the easement. So, if you're the only one using the road, you have to maintain it. If the other owner also uses it, you'll have to share the costs of maintenance.

2. An easement by prescription occurs where a person uses the land of another, without permission, continuously, for an extended period of time. The use must be open and notorious - sneaking across someone's land in the middle of the night isn't sufficient. The problem is, you have to do it for ten years, which gives your neighbor plenty of time to block your access or have you arrested for trespassing. So, that's usually not the best option.

3. You can bring a suit against your neighbor for an easement by necessity. The law wants land to be used. That's actually why we have laws that allow people to gain the right to use or keep land if they take initiative and the owner lets it happen - it's a matter of public policy. So, if there is literally no way to reach your land, other than across this other person's property (no matter how inconvenient another means must be, if it exists, you're expected to use it), you can file suit against your neighbor asking a judge to condemn an easement for you. You will be ordered to pay for it. The order would then be recorded with the county, and you would have the legal right to cross his property. These cases can be complicated, though, so it may be worth calling a local attorney and asking him to help you. It's not the kind of thing that can be done in Small Claims Court, and most courts aren't going to have forms. Another option is to send your neighbor a letter, via certified mail, explaining that you will sue if he makes it necessary, but you'd prefer to reach a resolution without having to go through the court system. In some cases, that may help.

Good luck.
Customer: replied 5 years ago.
Good start, thank you. Does this specifically apply to mining claims, as there are many Federal regulations involved? There are "RS 2477 roads", which may apply here. I have read in Federal mining claim Regulations, that one claim holder "cannot" prevent access to another claim and the land I wish to cross is still listed on county records as a claim, even though it is "Patented", which makes it the owners own property.
That's the general rule for crossing someone else's property, where there may not be an established right of way or road. A patented mining claim is considered private land, which is why I was going over the general provisions. R.S. 2477 gives the government the right to build highways over public lands, so that doesn't apply to your situation. I'm going through the federal mining regulations, but I'm not finding specifically what you mentioned. You may want to call your local field office to see if there's anything they can do.

Customer: replied 5 years ago.
I mentioned the RS 2477 reference because there is a visible road which went to the extensive mine workings on the Patented claim, and the old workings on my claim are on the top of the same ridge, a little farther on. Satellite images show the road "leading towards" my workings, but not definitively reaching my mine, though the oldest view is from 1992. Thank You!
You're welcome.

Also, if that's a public road, you can use it. Where the federal government puts a public road down pursuant to authorization by statute, the public has an easement to use it. The owner of the land can't stop you.
Customer: replied 5 years ago.
The 100 year old "road" goes to and past the neighbors mine, and was probably created just for mining in the area by the company which created his mine, I doubt the Government built the road. The road is just a one lane probable wagon trail, though there is some bank work done on it. If I can find when the neighbors claim was patented, would that make a difference, as in, if the road was "Probably there" to work the mine before the claim was patented, the Federal claim rule that "one claim cannot prevent access to another claim" would apply?
If there's no other way to access your claim, you'll be able to use the road no matter what under the general rule that property should be used. You may need to go into the records to see who owns that road. It's entirely possible that there is a public easement on it. But try talking to BLM first.
Lucy, Esq., Attorney
Category: Legal
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Experience: Lawyer
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