Nogal Canyon Road dispute over private versus public access

June 16--A clash between land owners along Nogal Canyon Road, who contend the road is private, and representatives of Lincoln County, who insist it is public access remained unresolved last week after a lengthy discussion with county commissioners.

Tom O'Dell, representing some of the property owners, told commissioners that when his wife's family bought the land, it was served by a dirt track. Her brother later borrowed a road grader from a neighbor and turned the track into a road up to the Fitzpatrick land to give the family better access to the farm, O'Dell said.

"I acknowledge at the present time it really doesn't matter who made the road, except that if the county made it, I certainly would be told they had constructed the road as if it was of true importance at this time," he said. "The road progresses up the canyon and into the Lincoln National Forest."

No one paid for right of way, "It was just people making a way to get to their homes and properties," he said.

The residents of Nogal Canyon have been willing to share the road with people traveling to the national forest to hunt and camp, he said.

"But now, the nonresidents are the majority of people who use the road," he said. "All of us have been forced off the road by speeding drivers who do not seem to realize that the absence of a white line down the center of the road does not negate the necessity to drive on the right side of the road."

Houses close to the road are impacted by the dust from traffic and blind hills compromise safety, he said.

Private property rights aren't an issue of any particular political party, he said. "They are an American ideal enshrined in our laws," O'Dell said. "The Nogal Canyon Road is on private, not public property. There have been no rights of way given for the road. There have been no court decisions granting any prescriptive easements on the road. Prescriptive easements do not just come about after a period of time. They must be granted by courts after consideration of all the facts.

"The landowners on Nogal Canyon Road have no desire to just give their property away."

Liability for accidents lies on the shoulders of the landowners over whose property the road crosses, O'Dell said attorneys have told him. However, County Attorney Alan Morel acknowledged in the meeting that ultimately, the county may have liability, because it claims the route as a county road and maintains it.

Bringing the road up to county standards would be extremely costly and impractical for the county, O'Dell said.

He and his wife circulated a petition to attempt to find a solution to the problem, O'Dell said. But conversations with the county planner and a letter from the county attorney did not sit well with the landowners, he said.

"On May 21, the day after the last county commission meeting, the county road department showed up and worked for six days with two, sometimes, three road graders, a water truck and a roller," O'Dell said.

The result was that the road in some places was widened as much as 8 feet, he said. Making the road wider is taking more property from the landowners, he contended. In places, the edge of the road meets a steep drop-off and one area could intrude on a cemetery, he said.

What residents want is an alternate route to the national forest not crossing private land and to garner support from the county for the U.S. Forest Service to use public not private, property, he said. Other public access is available, even if it is not the best, he said, citing three routes, including a track over Bureau of Land Management property and a road from Bonito Lake that is closed in the winter because of snow. The road in Nogal Canyon passed the last piece of private property also is closed in the winter, he said.

While they hope for a new route, to limit their liability, O'Dell and his wife will put up signs warning people that the road crosses private property and is traveled at the driver's risk. "We do not wish to cause any hardship or burden to our neighbors, but ironically, we are forced closer to that decision by the county working on and improving a private road with the full knowledge it is private without the permission of the landowners, increasing the volume and speed of the traffic and the potential liability for the road," he said.

County's position

Morel told commissioners he has examined the status of the Nogal Canyon Road several times. The assessor's office prepared a map to show the properties that are impacted.

"Public roads are created in a number of different way," he said. They can be created as part of a subdivision plat, which is the official layout of a tract filed with the county. "That isn't the situation here," he said. "This is a prescriptive easement or an implied dedication issue. I talked to County Planning Director Curt Temple about the number of roads in the county created (in that manner) and I thought about 50 percent, but Curt thinks it is closer to 70 percent to 90 percent. Most of the roads in the county are based on a prescriptive use or implied dedication to the county." On many other roads, easements were issued allowing people to drive on them, he said.

"I disagree with the presenter," Morel said. "This is a public access and probably has been since the late 1800s. I have received a letter from the presenter's attorney so I will deal directly with the commission. Some facts that relate to that particular road are that it starts in Nogal and we counted over 50 properties accessed off this road, about 26 residences. At the end of the road is a county subdivision platted in 1970 called Elena Del Rae and that part of the road in the subdivision is dedicated to public use and is the only way to get to that subdivision."

Several mining claims are accessed only along the road, he said, some patented in 1891, 1895 and 1899. The road probably began as a horse trail and has grown in use and size as have many other roads in the county, the attorney said. The road was added to the county road map in 1982, called CO13. It has been included on a list sent to the state since 1987, as a county maintained road, about 2.95 miles up to the Forest Service, and maintain under contract another 7.18 miles inside the national forest.

The county road superintendent claims the road receives "regular maintenance," which carries no definition, Morel said.

"Whether it is a prescriptive road or a road that is a public access through an implied dedication, it is a public access and has been possibly as long as since 1891," Morel said.

Each property owner probably receives a title insurance policy when they purchased and on that policy, it says how the property is accessed, he said. "If you close this road, you probably would be sued by every title company that issued a policy, because they guaranteed lawful access to that property," he said. The only way to get rid of a public road is to abandon and vacate it pursuant to state statutes and that requires a road review committee site visit to determine if it makes sense to close a road based on cost and access, he said.

In the case of Nogal Canyon, it almost would be impossible to close the road, because of the needed access to other properties, Morel said. O'Dell's wife reminded commissioners that her husband never mentioned closing the road, only posting private property signs and seeking help in finding a route over public land.

Morel cited several court decisions as a basis for his opinion, one in the courts for 12 years, because the Attorney General contended it was illegal to give away public access. The road ran through a ranch and accessed public lands, but the court ruled to abandon a county's interest required receiving fair market value, because public money went into maintaining the road, he said.

"We'll just have to agree to disagree that this is a private road," Morel said. "It is a pubic access, although it is over private land. I sympathize, because it doesn't seem fair that the government can use your property and not pay. We didn't take it, we're simply using it. This has been litigated time and time again."

He offered to work with the land owners toward a solution.

Commission Chairman Jackie Powell said her family arrived in the county before there were county roads. "Our ranch got cut in half by U.S. 70," she said. "I'd like to refer this to the attorneys and see if they can work something out, but I don't wish to take action. In my area, there probably are 50 prescriptive easements. Most of the roads around us are the same. One big difference (in Nogal Canyon) is access to the forest. The roads have been there since the 1800s and have been accessed consistently. Just like we had to eat Highway 70 when they widened it, whether we wanted it or not, it's a public access and has been public access."

Commissioner Dallas Draper asked for more information about other route options.

Morel said he will respond on the commission's behalf to a letter he received from an attorney in Albuquerque.

Dave Warnack, Smokey Bear District Ranger for the Lincoln National Forest, said the alternate route O'Dell showed him also would require travel over private land, for which the agency has no easement, an environmental assessment and some "pretty substantial road construction because of the topography."

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