All roads and highways which are, on May 4, 1921, by law open to public traffic shall be public highways within the meaning of this part 2.
Source: L. 21: p. 362, § 2. C.L. § 1386. CSA: C. 143, § 93. L. 45: Ex. Sess., p. 41, § 1. CRS 53: § 120-3-2. C.R.S. 1963: § 120-3-2.
ANNOTATION
The phrase "by law" requires that this section operate in conjunction with another statute. For a road to be public under this section, it must have been open for public traffic by operation of another law prior to or on May 4, 1921. High Lonesome Ranch, LLC v. Bd. of County Comm'rs for Garfield, 508 F. Supp. 3d 801 (D. Colo. 2020), aff'd in part, rev'd in part on other grounds, 61 F.4th 1225 (10th Cir. 2023).
Finding that roadway is public not erroneous. Where evidence discloses that a roadway across lands has been used by a plaintiff as a public roadway for more than 40 years, a finding and judgment under this section and § 43-2-201 that a public road has been established is not erroneous. Brown v. Jolley, 153 Colo. 530, 387 P.2d 278 (1963).
Use is requisite element in making highway public. The United States statute granting land to this state is an express dedication of a right-of-way for roads over unappropriated government lands, acceptance of which by the public results from use by those for whom it was necessary or convenient. User is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices. Martino v. Bd. of County Comm'rs, 146 Colo. 143, 360 P.2d 804 (1961).
Highways constructed by the United States Forest Service are public highways within the meaning of this section. People ex rel. Metzger v. Watrous, 121 Colo. 282, 215 P.2d 344 (1950).
Limited right-of-way established for miners hauling quartz under § 34-48-104 does not establish a public highway. Because the right-of-way established by § 34-48-104 is limited to miners hauling quartz, it does not make a route open to public traffic by law and does not establish a public highway under this section. Gold Hill Dev. Co. v. TSG Ski & Golf, 2015 COA 177, 378 P.3d 816.