Digging in road right of way

605dano

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Nov 25, 2012
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A county road next to Forest Service Has tailings from old [100 yr.+] placer operation. The road hugs the far side of the right of way. There are private holdings close. Some of the tailings front the private property. Can I dig in the right of way? If I claim the Forest Service does that make any difference? Looks like an old hydraulic operation that was following a pay streak. Can I use the right of way to access Forest Service? Any thoughts?
 

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DizzyDigger

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Might be best to first check with the county and confirm
that there is a right-of-way.
 

Clay Diggins

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You can't dig in a valid right of way. Even if there isn't a valid right of way it would be illegal to remove material from a public way. Roads require surface support, any digging you do near a road is going to be seen as undermining the surface.

Usually a right of way is defined by the distance on either side of a road's center. If the roadway is moved so is the right of way. The right of way is just an easement - the land is not actually owned by the state, county or city maintaining the road.

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Underburden

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I watched a fella chase a vein starting right on state Hwy 14 in Idaho. He even had official 'men working ahead' signs before & after his operation. He even posted a claim sign as you can see to the left of the blue ribbon in the attached picture. He worked it for about a month. Don't know if he got run off or he cleaned house & went home.
P1040359 (2).JPG
 

IMAUDIGGER

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Its not black and white and the answer is “It Depends”.

In your case, you probably don’t know what type of right of way the county has (if any).
There are all kinds of flavors of “right of ways” associated with public roads, each with their own governing case law depending on what state you are in.

You also probably don’t know the exact boundary limits of any “right of ways” in relation to the physical roadway.

Likely if it is a rural area and the spot your interested in is off the road a bit, nobody is probably going to say anything to you as long as you use common sense.
 

IMAUDIGGER

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Where private lands are concerned.
If a road agency only has an easement, the mineral estate has been reserved, and you own the mineral estate...I think you can tunnel under the roadway and dig as much as you can on the surface as long as you are not negatively affecting or interfering with the public’s rights. You probably have some responsibility to notify the public agency of your intent and to work out surface access.

We have many roads that were realigned to facilitate mining by the underlying land owners...sometimes they were returned to their original locations.

On federal lands...there may have been an exception for roads, trails, and canals when the mineral estate was opened to US citizens back in the day...

I’d say you are grasping at straws.
 

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Clay Diggins

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It's not that complex. A right of way is an easement. The underlying land is not owned by the government that maintains the road. It's exceedingly rare for any state, county or municipality to actually purchase land for a roadway. They simply purchase the easement to the right of way or condemn the surface estate and pay the owner a lump sum.

Although minerals under the right of way are privately owned it's illegal under all state's laws to undermine a roadbed. It's true that the owner of the minerals under the roadway has a right to accommodation for their mineral extraction plans but most ROW easement agreements prevent that. It's entirely possible to mine under a road, building or crops, and it's done quite often, but surface support and compensation have to be provided by the miner. It's almost always an expensive and complex process.

The casual prospector/miner has about zero chance of legally digging in a right of way. The fact that you may not be "caught" or the cops have better things to do doesn't change the law. Life is sometimes accommodating and sometimes not so much. To my mind the downside should the cops decide they want to charge you outweighs the upside of a couple of grams of gold. Other's may reasonably disagree. :thumbsup:

Legal definition of Right of Way (ROW):
1) The right to pass over or through property owned by someone else, usually based upon an easement.

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Buckshotnc

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Here in North Carolina I granted (sold) the local Electrical cooperative an 100' wide Right of Way (Easement) through my property (Treasure Valley) under threat of eminent domain for about 1/2 mile and the easement is only for the Electric co-op and their contractors and no one one else would have authority to be on the property. I did however reserve the right to prospect and mine in the easement as long as I did not get within 25 feet of their towers and filled any holes (reclaim) when finished. Bottom line the fact probably is that federal & state laws may possibly vary in different locations.
 

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IMAUDIGGER

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I suspect if this is a rural road running through public forest lands, the county likely doesn’t have anything of record.
So they would have to rely upon a claimed prescriptive easement. The limits of that claim may be a statutory width, or only the footprint of what is being maintained (top of cut to toe of fill, including needs like drainage, slope rounding, vegetation management, snow storage, etc.), depending on the state.

Mine tailings adjacent to a roadway may well fall outside a claimed prescriptive easement and might be perfectly acceptable to prospect depending on the situation. However the fact that it was stated that the tailings front the adjacent private property....grasping at straws.

I’ve seen many right of way deeds that were written up as fee title transfers, though probably not intentionally.
 

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605dano

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Thanks for the replies. I will prospect the Forest Service land adjacent to the easement. It has deposits of washed gravel on it,a few small terraces, but is a hillside. It looks like the old timers hit the sweet spot channel at the base of hill.
 

IMAUDIGGER

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Many times the early miners lightly surfaced washed the hillsides with little evidence of tailings.
Later the larger hydro mines were developed below.

If that area isn’t covered by a mining claim, you may have something.
 

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605dano

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Thinking of logistics to wash gravel another thought came to mind. Can I run the gravel through a stream sluice in the stream that runs along side of the road in the easement? Like under the bridge?
 

IMAUDIGGER

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So to be clear your asking if you can take gravel from the benches transport it to the stream and run it through a sluice box alongside a county road?
You could do that I guess ; ) .....but would you really want to?
You can probably imagine what the water would look like downstream.
Likely be getting a visit from some government official sooner or later.
Probably get away with panning small quantities of screened gravel to see if there is gold there.

Typically the way to approach that would be to set a highbanker up on the bench near the gravels..in an area where the tail water has an opportunity to settle out and soak into the ground before entering the stream. A tarp dam might be necessary to pond the tail water up. I see from past messages that you have a recirculating highbanker..just need a pump and some hose.

Depending on what state your in, that might not even be a possibility : (

Public visibility greatly affects what you can and can't do..that's the real truth.
 

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IMAUDIGGER

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Better option would be to just go around picking up nuggets and forget about shovels and buckets.
That's what some people do. Might not be an option in your locality.
 

et1955

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Thinking of logistics to wash gravel another thought came to mind. Can I run the gravel through a stream sluice in the stream that runs along side of the road in the easement? Like under the bridge?

In my state it is perfectly legal to do that also you must determine who governs the water ways in your state. The WDFW controls the the rivers here WA., there control starts at the high water line to the river and they give us miners the ability to sluice and pan in that area.
 

IMAUDIGGER

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In my state it is perfectly legal to do that also you must determine who governs the water ways in your state. The WDFW controls the the rivers here WA., there control starts at the high water line to the river and they give us miners the ability to sluice and pan in that area.

Your able to transport gravels from beyond the high water line down to the water and sluice them into the water channel? Surely you couldn’t load a truck bed up with materials excavated from outside the stream channel, drive down to the river and start shoveling into a sluice (legally that is) ?

Remember my perspective is coming from California...so I may be out of touch with the rest of the country ; )

I’m also working from a weak understanding of the layout of the area the OP is trying to mine. Since it’s near the road right of way, I assumed these gravels were not coming from the stream channel or below the ordinary high water line. I may be mistaken.
 

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605dano

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In my state S.D. it is legal to set a sluice in a stream. Highbankers are not allowed. You can not pump water from stream. Whether panning or sluicing I was wondering about access to stream in right of way. I really don't think anyone would mind if I used common sense but legally could I set a sluice in front of someones house in the stream?
 

IMAUDIGGER

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The distinction I was trying to make was it usually matters where the material came from that’s going into the sluice (stream).

Material coming from below the ordinary high water mark...your just moving existing streambed material around.

Material coming from above the ordinary high water mark is “fill” and is actually considered pollution from the governments perspective.

Too bad about not being able to use a high banker. Sounds like you already know a bit about your mining laws.
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I’m assuming the bridge is covered by an easement. Easements are only for specific purposes. A roadway easement is solely for roadway purposes (and usually public utilities). The underlying owner still has all the remaining rights.

An interesting thing...in California, there is a code that required public agencies to construct river access when new bridges are being constructed. So many times you will see steep roads next to bridges that go down to the river.
In our county we have a river access next to a bridge that was traditionally used as a drift boat launch. The owner of the underlying land put a cable across it and now charges people to launch drift boats. It’s clearly within the road right of way. Launching drift boats has nothing to do with roadway rights any more than sluicing does.

Ownership is key to the question you are asking.
 

et1955

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Your able to transport gravels from beyond the high water line down to the water and sluice them into the water channel? Surely you couldn’t load a truck bed up with materials excavated from outside the stream channel, drive down to the river and start shoveling into a sluice (legally that is) ?

Remember my perspective is coming from California...so I may be out of touch with the rest of the country ; )

I’m also working from a weak understanding of the layout of the area the OP is trying to mine. Since it’s near the road right of way, I assumed these gravels were not coming from the stream channel or below the ordinary high water line. I may be mistaken.
[/I]
It is legal in my state but you must classify the material first before processing first and if you have truck to haul material bringing the water to do that should be no problem, Mine smart.
 

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605dano

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Thanks for the replies. I will sample the hillside, leave the right of way alone and probably bring the screened material home to process in my recycling highbanker I have built. There are no large deposits there ,but was a producer during the gold rush and is very close to home. Appreciate your insights.
 

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