Does anybody know if roadcuts are fair game? There are usually fences 10 to 30 feet off of the road, so who owns that section of land between the road and the fence? Does the land owner still own that, or is it part of the transportation service?

The issue has come up before and I'm 99% certain that answer is despite the easement, it is still private property. Tried to do a search, but couldn't find the post, but I'm sure one of the smart folks will chime in.

Great question! That area is owned by the property owner because easements don't transfer ownership.

Denise

The answer depends on who owns the road. Some roads are private, others are owned by a municipality, county or state. Research (which isn't as easy as researching mining claims) may provide some information as to ownership. Often there is no record. As an example, Highway 73 between Conifer and Evergreen is claimed by Jefferson County by prescriptive right. There is no deed, but because it has been used by the public for many years, Jefferson County claims ownership.

If the road is privately owned, then you have no right to prospect the road cut (no surprise there unless the road crosses land that was patented as a Stock Raising Homestead Entry; in that case only the surface estate was conveyed by the patent with the minerals still held by the Feds). If the road cut is within CDOT right-of-way, you must get permission from the state to do anything within the ROW.

As a second example, before a surveyor can conduct a survey within CDOT controlled/owned right-of-way, the surveyor must file a traffic control plan with CDOT and have it approved. The plan must protect both the public and the surveyor and his employees from any harm.

You will likely get a visit and be told to leave if you do any playing within state ROW. Way back when I was a geology student, many of our field trips were to road cuts around the Golden area. Nobody bothered us then. It is not the same now.

As for easements, they are a completely different animal. They are in a nutshell, a right to use the land for a specified purpose. There are several types of easements depending upon the nature of the usage and the particulars of how the right was acquired.

Gene

Thank you for the info. One question i had, who would you contact to get permission from the state for CDOT areas? I believe that the area i would like to search is CDOT, so it would be nice to ask them.

Thanks again
Adam

Hi Adam,

Very good question and many folks wonder about that.
CDOT would never be the ones to contact in my opinion though as they do not own the land in fact. As Gene said above in his post "CDOT controlled/owned right-of-way" ....... More accurately stated controlled/right of way and not actual "ownership". Since the state road dept has only an easement (stated by words such as "right of ways" or "controlled") which is not ownership but is an agreement from the land owner (who pays the taxes) with the county or state to have and maintain the road on said property parcel. Thus they (CDOT) have "control" of the ground surface use, but still do not have ownership which means they are not the ones to ask for permission to prospect that ground around or under roads.
Generally speaking for road cuts, I know they are private within private lands.....so prospecting there is no go without owners permission. You will still need to find and contact the actual owner of that parcel on record (county office) to get the permission needed to prospect.
But on public lands (FS or BLM lands) they would be open, that's where you can prospect a "road cut" as long as no claims exist there of course.

If one is prospecting near roads in recreational areas/private lands or constructed devices of any kind CDOT has erected, then of course it's a simple answer, don't dig by or near or especially under anything like culverts, pylons, supports or actual roadways.

Hopefully the way I explained that makes sense for everyone reading.....

My understanding of CDOT's ownership of the ROW differs from CP. In cases other than the land being owned by the Feds, CDOT obtains fee simple title to the ROW. It is not the same as an easement. I base my opinion on CDOT's Right Of Way Manual. A quick aside....to borrow a phrase from the movie Red October, CDOT doesn't do anything without a manual listing pretty much everything that is to be done.

The CDOT ROW Manual contains 11 chapters and supplemental information.

Information regarding deeds begins on page 46 of Chapter 4 - Section 4.8 - Deeds

Information on mineral rights and additional information on CDOT's aquisition by fee simple title is located on page 46 of Chapter 3 - Section 3.3.7 - Mineral Rights

Below is the section with my added emphasis.

3.3.7 -- Mineral Rights

In 2008, Senate Bill 08-041 modified §38-1-105(4), §43-1-203(1), §43-1-208(4), and §43-1-209 C.R.S. to except oil, natural gas and other mineral resources from acquisition through eminent domain except for subsurface support of the highway. Although some minerals (vein, ledge, lode, and deposit) were already excluded from acquisition for right of way or easements acquired by condemnation (§43-1-210 (1)C.R.S.), this Senate Bill added exceptions for oil, natural gas, and other mineral resources when acquiring land for highway purposes (§43-1-208 (4), C.R.S. (2010)) and also through condemnation proceedings (§43-1-209 C.R.S. (2010)).

Property to be acquired by CDOT will be appraised at reasonable market value for the fee simple title "as if free and clear" of liens and encumbrances, subject to existing easements, covenants, deed restrictions, rights-of-way of record, and excepting therefrom all rights to oil, natural gas, or other mineral resources beneath such real property. The appraisal report shall state that these mineral rights are not included in the valuation due to an assignment condition.

CDOT is acquiring the fee simple estate in the surface of the land, but is not acquiring the mineral estate. In acquiring the fee simple estate in the surface, the owner who retains the mineral estate will not be able to develop the mineral estate from the surface of the land that CDOT is acquiring. For that reason, the appraiser must determine if there is any change in value to the mineral estate due to this loss of access. Unless the mineral estate has a significant value, the change in value to the mineral estate for loss of access to the surface land is usually either zero or a nominal value.

The appraiser must use reasonable diligence to ascertain the mineral interests involved with the property being appraised. A careful inspection of the title commitment will, in most cases, show the mineral interests previously severed. If the title commitment does not expressly address mineral interests, CDOT will not request or otherwise pay for additional title work to verify what, if any, mineral rights are owned, except in special circumstances approved in advance by the Region Right of Way Manager.

CDOT has clarification from the Colorado Attorney General's office on the following:

• Title work performed for right of way acquisitions is not conclusive as to the ownership of mineral rights.

• The property owners who sell land to CDOT may retain their mineral rights.

• These added mineral rights are interpreted to mean the "deep" mineral interests (hydrocarbons), not the surface mineral interests such as sand and gravel.

• "Mineral" does not include surface or groundwater subject to appropriation for domestic, agricultural, or industrial purposes, nor does it include geothermal resources.

• CDOT must not offer an opinion as to mineral rights ownership to property owners. Property owners may consult with their choice of legal counsel. CDOT will not pay for this advice.

• CDOT can appraise and purchase mineral interests in special pre-approved situations, but cannot condemn for them

• Whenever real property is acquired for road or highway purposes, the right to subsurface support of such real property is deemed to be acquired therewith.

The possibility of the existence of mineral rights is not sufficient to affect market value. Such a possibility should be recognized only when there is sufficient probability to affect market value and when that probability would be given weight by a prudent person in bargaining. Appraisers must notify CDOT if significant value is indicated.

When it is determined and previously approved that mineral rights need to be included in the appraisal, a specialty appraisal may be required. The results of this specialty valuation report of the mineral rights cannot simply be added to the value of the land to arrive at a value of the property as a whole. The appraiser shall state his or her final estimate of value of all of the property under appraisal as a single amount, including the contributory value of fixtures, timber, minerals, and water rights, if any. The appraiser must avoid making a summation appraisal.

If the ownership has mineral rights and the owner wishes to include them in the sale of the land to CDOT, CDOT will pay only a nominal amount for the mineral rights.


As for CDOT acquiring land for ROW from other State or Federal agencies, see Chapter 11

As a separate aside to the issues of ROW ownership, my opinion regarding the impropriety of prospecting road cuts hinges solely on safety. CDOT and other highway agencies are very careful in allowing any activity within the right of way. IMHO it is wrong to prospect road cuts because of the danger of rock falls. Anyone remember the tragedy on Berthoud Pass? CDOT does and I believe it is one big reason for their current policies.

Yes I do remember that CDOT incident Gene, it was a terrible event/mistake!

I'm sure there will be some more club members and forum members who might post up opinions on this also soon.
Personally I do not think that CDOT's manual is any "authoritative" documentation unless one is working on a roadway. Thus I do not think your interpretation of their authority or ownership to be quite right...sorry.

I've held jobs as both a road construction equipment operator under CDOT's jurisdiction as well as a surveyor's party in the field and I've done many many boundary traces (location mining claims and patented/private lands) and I'm also a private land owner. More times than not I've found the roads still are owned by the land owner, not CDOT!
Even underneath I-70 which is claimed to be owned (eminent domain), existing mines had large culverts put in by CDOT so their claims/mines shafts could still be accessed after the interstate highway was constructed........Still exists in Idaho Springs!

Not trying to argue but there are things you've quoted yourself Gene seem to reiterate what I was saying ......... such as



and...



.........another



Just another Anyone else have thoughts on the matter?

Thank you for the info CP. Another question, sorry for all the questions, how would one seek permission on private property? Do you just go to their door and ask, or is there a more proper way to go about it?

As always thank you for all the responses

You're welcome and no apology needed, always happy to help answer questions.

Yes for private lands if there happens to be an "occupant" on the parcel that is a good start. But that may still not be who owns the piece....ie renter or house sitter etc.
To find out for certain who is and make contact with the real "owner" you'll simply need to visit the county office and find the tax record. Who ever is currently paying the property tax is the owner on the deed (unless under tax lien status). Owners name and contact info is public information available to the general public in any county.
Always use the actual records to find the truth, not someone else's hearsay. Takes a little effort on each persons part to be diligent in their efforts but very well worth it in our view! Makes a huge difference in the field and successes attained.

CP,

While we agree on some items, there are two items that we disagree on that are important to aggum1983's initial question. You state that a right of way is an easement. That is not correct. A right of way is often more than an easement. In the case of CDOT ROW, they opt to purchase the surface estate in fee simple title whenever possible. If they are unable to reach an agreement with a private land owner, they will go through a condemnation proceeding. The key is that CDOT must pay fair market value for the surface estate. Chapter 3 of the CDOT ROW manual discusses many things that the appraiser must do in the acquisition of ROW.

The other thing that I disagree with you on is whether the mineral estate owner has the right to mine the minerals from the surface. One of the things that a State of Colorado appraiser must do is see whether the taking of the seller's right to mine the subsurface mineral estate from the surface of the to be acquired ROW must be included in the compensation. I highlighted the pertinent section in red in my previous post. It states that CDOT is obtaining fee simple title (not an easement) to the surface and that the surface is off limits to anyone wishing to develop the mineral estate.

"CDOT is acquiring the fee simple estate in the surface of the land, but is not acquiring the mineral estate. In acquiring the fee simple estate in the surface, the owner who retains the mineral estate will not be able to develop the mineral estate from the surface of the land that CDOT is acquiring".

The mineral estate owner cannot mine the minerals via the surface, nor can someone prospect road cuts within the state ROW. Permits for working within a CDOT ROW are issued by the CDOT regional office responsible for that road.

My understanding differs for this situation also. I would never assume that a state road ROW crossing the Public Lands allows open prospecting of road cuts or any other surface activity. If folks here believe my assessment is incorrect, please call CDOT or the FHWA before entering the ROW. They will tell you that you are not allowed to prospect within the road ROW. Your prospecting efforts will be taken as trespass.

My statements do not mean that the subsurface minerals cannot be mined. A miner would have to access the minerals under a road ROW via underground workings and install sufficient shoring and support structures to protect the roadway and other surface structures from collapse.

Sorry I did not specify enough, I thought we'd already covered this point...... I am not referring to road cuts on any highways...state or interstate nor any county "maintained/paved" roads for sampling.... I was in the mindset of more FS or BLM roads that are not paved when I said that, and is where of course prospectors should be possibly parking or hunting for minerals in an area. Not along any highways/interstates, that would just be silly and unsafe! I think most of the readers in this forum are going to be thinking along those lines I've just described when discussing road cuts and sampling them.

I have an opinion about the CDOT references you keep using Gene.

CDOT does not regulate mining/prospecting. I also do NOT consider CDOT manual a valid source of laws in general let alone anything to do with prospecting. If a dispute over prospecting went to the courts I would wager the law would be considered and the CDOT manual would not. With that said it is a matter of ownership whether it is surface ownership or mineral ownership.

Nowhere did I state that any CDOT manual should be regarded as authoritative regarding mineral rights. I only highlighted one bullet in the section where the Colorado AG's office provided clarification to CDOT. Below is that section in italics (my emphasis).

CDOT has clarification from the Colorado Attorney General's office on the following:

• Title work performed for right of way acquisitions is not conclusive as to the ownership of mineral rights.

• The property owners who sell land to CDOT may retain their mineral rights.

• These added mineral rights are interpreted to mean the "deep" mineral interests (hydrocarbons), not the surface mineral interests such as sand and gravel.

• "Mineral" does not include surface or groundwater subject to appropriation for domestic, agricultural, or industrial purposes, nor does it include geothermal resources.

• CDOT must not offer an opinion as to mineral rights ownership to property owners. Property owners may consult with their choice of legal counsel. CDOT will not pay for this advice.

• CDOT can appraise and purchase mineral interests in special pre-approved situations, but cannot condemn for them

I posted pertinent chapters of the CDOT ROW manual to show how CDOT goes about obtaining ROW for public roads. That manual is CDOT's attempt to make sure that fair market value is assigned to the value of the taking.

The idea I hoped to convey was that CDOT obtains fee simple title to the surface estate along with a restriction placed on the mineral estate that prevents surface disturbances within the acquired ROW whenever possible. The bottom line is that CDOT obtains and maintains exclusive control to the surface within the ROW. The owner of the mineral estate has the right to mine the subsurface mineral estate. However, they cannot access the minerals from the surface within CDOT's ROW.

What is authoritative is the deed between the private land owner and CDOT, whether that is a warranty deed, quit claim deed or any of the other deed types listed in Chapter 4 of the CDOT ROW manual.

CP,
Thanks for the clarification. The first quote above indicated that you were talking about any road controlled by CDOT. That led to my replies that CDOT does not obtain easements, but rather fee simple title to the surface and restrictions on mining the subsurface from within the ROW.

As for your example in the second quote above, it depends. There very well may be "restrictions" on prospecting. As an example, I recently ran across a grant of a ROW for a power line on BLM's GLO Records web site. Below is the introductory text to a grant by the Federal Power Commission of a right of way to Public Service Company of Colorado in the 1930s. The language I highlighted in boldface withdraws the land within the ROW from mineral entry.

From: Federal Power Commission, Washington
To: The Commissioner, The General Land Office

In accordance with the provisions of section 24 of the act of June 10, 1920 (41 Stat. 1063), notice is hereby given that the lands of the United States hereinafter described are included in a power project for which amendatory application has been filed by Public Service Company of Colorado, Denver Colorado. The lands are embraced in a proposed transmission line right of way. The date of filing of the application map is Xxx. x, 1930s. Under said section 24 these lands are, from said date of filing, reserved from entry, location, or other disposal under the laws of the United States until otherwise directed by the Commission or by Congress.....

In this case, the grant of a right of way is an easement. If someone had staked a mining claim before the date of filing, their claim would still be valid. In the above case, there were several lode claims that were located before the issuance of the withdrawal. Those lodes were later patented. Today, Xcel Energy's position is that they have a prescriptive easement across those lode claims to maintain the line.

A road across the Public Lands may very well have a grant similar to the above example where locating mining claims within the granted ROW is not allowed because the land was withdrawn from mineral entry. I have tried to keep my answers generic, but if someone has a specific case they'd like to share we can get into the particulars.

One of the things that I especially enjoy about land surveying is that each case is unique. I have general principles to follow, but I am not constrained to those "rules". Curtis Brown (a California land surveyor and author of several books on land boundary law) coined a phrase many years ago when discussing boundary law in his book, "Boundary Control and Legal Principles". The text listed several tenets of boundary law and their order of significance when he ended the discussion with, "The contrary can be shown!"

Thanks for the added info Gene, you bring up several very good points as well! Especially about site specifics creating so many variables that can make completely different scenarios play out for that claim or parcel involved. Jefferson county's open space park along Hwy 6 is a prime example, so many folks get confused why they can dig in parts of that canyon or why not.

Generally speaking though, for asking permission to prospect for minerals, I do not feel that the department of transportation is ever the proper authority or owner to ask any questions from. They just do not know about minerals or rights to ownership in their "roadway maintenance" duties prescribed for their job functions.
Many of the most popular "field collecting guides" also advise folks to inquire with D.O.T. which makes for a very frustrating planning of one's prospecting trips. I feel it's just poor advice to give anyone.

Safe to say, if a prospector/collector needs to ask the D.O.T. if they can "dig there", there will be a "safety" issue of some kind....ie pulling off the road, lack of parking space safely, and or falling rocks to you and or the roadway. Best to just find a better/safer place to prospect and skip the frustration.

Thanks CP. As I mentioned in the thread on mineral lands patents, I'm the odd duck of this forum and realize that my views and opinions may be contrary to others.