AT LAW: “CHECKERBOARD” LANDS AND ADVERSE GRAZING The West was a wilderness needing to be settled and developed. ARTICLE BY THOMAS K . KELLY WITH TAMRA S. KELLY AND STEVEN D. PENDLETON
To a person not familiar with the interplay between public lands grazing, private property rights and open range laws adverse grazing of another person’s private property is a foreign concept. Answering the question requires a basic understanding of the history of the acquisition of private lands in the United States, the role of public lands agencies in the management of public lands and the interplay between public and private land and open range laws. Railroad Land Grant Acts – Origin of “Checkerboard” Lands
Waterhold on a ranch. Roosevelt County, New Mexico © Arthur Rothstein, Circa1936
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y wife is the broker and owner of Ag Lands Southwest, a real estate brokerage firm specializing in the sale of working cattle ranches and other agricultural properties in Arizona and New Mexico. Unfamiliar with large working cattle ranches dependent on leased public lands, many out-of-state buyers have numerous questions regarding nature and dependency of grazing leases,
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water rights, access easements, carrying capacity, etc. requiring the specialized expertise of ranch real estate brokers. A question often asked is: “What is adverse grazing?” Related to this initial question is the follow up: “Does it add to the value of the ranch?” and, “What are my rights regarding the continued use of another person’s private land for grazing?” These questions are difficult to answer.
To encourage development of the new nation, soon after the Revolutionary War, the United States government began transferring much of the continent into private ownership. Using a variety of congressional acts, more than a billion acres were granted to states for education and transportation purposes, given or sold to war veterans and settlers for homesteading, and to corporations to develop water, timber, and mineral resources for the nation. As the western expansion of the nation began, laws were passed to transfer large tracts of public lands into private hands pursuant to land grant acts. The purpose of these land acts was to encourage and incentivize the development of the vast western wilderness. Prior to the advent of vehicular access by our interstate highway system, the most expedient, realistic and efficient means of access throughout the continent was by railroad. The West was a wilderness needing to be settled and developed. Through a series of a series of federal and state acts between 1850 and 1871, the railroad land grants incentivized railroads to construct railways across the west. The purpose of the railroad land grants were to build the transcontinental railroad and telegraph systems Continued on Page 34...
