In the Great Plains and Far West, many counties took advantage of the Act of July 26, 1866 (13 Stat 253) in which Congress granted a free right-of-way for public roads over unreserved public lands by declaring all section lines in the county to be public roads and, thus, reserving the right-of-way before the lands became private property. The Legislature of Dakota Territory passed an act (43 USCA 266) making all section lines public roads 66 feet wide to the extent it was physically possible to build roads on these lines.
The first continuing involvement of the Federal Government in the Nation’s highway construction program came with the original Federal Aid Road Act of 1916. This Act contained a definition of the term “construction” in broad general terms which did not specifically authorize or exclude Federal participation in right-of-way costs. However, the Federal Highway Act of 1921 expressly excluded Federal participation in such costs by redefining the term “construction” to except “costs of rights-of-way.” The effect of this definition was to bar right-of-way costs from Federal participation for a number of years. The 1921 Act did, however, provide that rights-of-way might be granted to the States across public lands or reservations of the United States for any highway or forest road or as a source of materials for the construction or maintenance of any such facility.
In 1938, Chief MacDonald expressed, in general terms, BPR’s thinking on right-of-way and clearly forecast the transportation needs of the future. In a speech before the 24th Annual AASHO meeting, he stated:
“The new special motor roads in the Netherlands include in the design two separated roadways for motor traffic, a bicycle paved path on one side, a wide pedestrian path also paved on the other, and at some distance removed, local roads adequately surfaced for land service and animal traffic. Here is a conception of a highway service that, complete in its component parts, may be used safely by all normal types of traffic, which quality should be reflected in many miles of highways in this country in the future. It may be urged that some of these types of traffic do not exist now in numbers to justify special provision for them, a valid objection as to the immediate need; but it is not the important point. The essential feature is the provision now for the land necessary for the development of each traffic facility when it is necessary. As our country matures and becomes more congested in population, we shall have the need for a combination of these or comparable highway facilities.”[1]
In anticipation of its involvement in right-of-way acquisition, the Bureau of Public Roads, in that same year, initiated a program of research involving highway right-of-way acquisition and development.
During the latter half of the 1930–40 decade, a number of bills were introduced in Congress proposing the authorization of Federal participation in right-of-way costs. Some of these bills even proposed to permit Federal acquisition of necessary lands for right-of-way purposes. None, however, received favorable consideration. During the period prior to World War II, acquiring land necessary for a highway was often thought of as a chore which would ultimately have to be taken care of but which could be postponed until after all other steps in the planning and programing of the work had been taken. A deviation from the established policy of no Federal participation in right-of-way costs did come in the Federal Aid Highway Act of 1940 which permitted Federal participation in the cost “of necessary new or additional rights-of-way” in the Territory of Hawaii under certain specified conditions related to the national defense. The Public Roads Administration was authorized to pay all or any part of the costs of specified projects, including the cost of right-of-way.
It was common practice to proceed with other preliminaries, including the preparation of plans, specifications, and estimates of construction items, before beginning the preparation of plats, descriptions, title evidence and appraisals of the individual parcels of land required for right-of-way. Only after all other preparatory work was completed did the agency begin to acquire the right-of-way, often under pressure to meet construction schedules fixed without giving adequate consideration to the time necessarily involved in all land transactions. The result was often the last minute acquisition of rights-of-way without the necessary basic data having been assembled. Because of the delays that followed, there were complaints that construction was constantly being held up because of the antiquated and cumbersome procedures pursued in securing the land.
This complacent prewar attitude and approach to the right-of-way problem existed at all levels of government. It was manifest both in the judicial and legislative branches as well as in the administrative units having jurisdiction over highway construction and maintenance activities. Federal funds could not participate in right-of-way costs, and the PRA took a legally required “hands off” position. However, as time passed, it became apparent that the Federal Government could not continue to tolerate the lack of proper acquisition procedures which existed in many jurisdictions as they related to the Federal-aid highway program.
Active Federal Assistance in Right-of-Way Acquisition
Congress made its first major departure from the policy of not participating in right-of-way costs with the Defense Highway Act of 1941. It authorized 100 percent Federal reimbursement for right-of-way costs on defense access roads and the payment of three-fourths of such costs on strategic network projects. It also authorized the Federal Government, itself, to acquire any new or additional lands that might be required for such purposes. Under this authority, many parcels of land were acquired by the PRA throughout a number of States. PRA also issued General Administrative Memorandum 149 in 1942 as a guide for States acquiring rights-of-way that would be subject to Federal reimbursement under this Act.
Twenty-seven years after the passage of the Federal Aid Road Act in 1916, Congress gave recognition to right-of-way as a necessary requisite to peacetime highway construction with passage of Public Law 146 by the 78th Congress on July 13, 1943. This Act redefined the term “construction” to include the cost of rights-of-way, thus permitting Federal participation in its funding. The following year the Federal Aid Highway Act of 1944 again included the cost of rights-of-way in the definition of the cost of construction. However, the Federal share of right-of-way
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- ↑ Contrasting United States and European Practices In Road Development, address by T. H. MacDonald before the 24th Annual Meeting of the American Association of State Highway Officials, Dallas, Tex., Dec. 5, 1938, Papers, 1937–39, pp. 12, 13.
