Cf. McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992) ("[t]o establish a prescriptive easement a party must prove that (1) the use of the easement was continuous and uninterrupted"). Although the law of RS 2477 rights of way suggests that "infrequent and sporadic" use is insufficient, Hamerly, 359 P.2d at 125, and that "regular" and "common" use by the public is necessary, Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266, 268 (1941), and that travel across the route may not be "merely occasional," the test is what is "substantial" under the circumstances, Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 210 (1945). Courts must look to the circumstances as they existed at the time of establishment.
In Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 414 (Alaska 1985), the Alaska Supreme Court recognized an R.S. 2477 right of way on the basis of the uncontradicted testimony of two witnesses that the route had been used by the public for beach access and for hauling freight into town. In Ball v. Stephens, 158 P.2d 207, 211 (Cal. Dist.Ct.App. 1945), the California District Court of Appeal recognized an R.S. 2477 claim along a route used originally by horse and wagon and later "almost daily" by motor vehicles. The court summed up the evidence as follows:
In Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 414 (Alaska 1985), the Alaska Supreme Court recognized an R.S. 2477 right of way on the basis of the uncontradicted testimony of two witnesses that the route had been used by the public for beach access and for hauling freight into town. In Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 211 (1945), the California District Court of Appeal recognized an R.S. 2477 claim along a route used originally by horse and wagon and later "almost daily" by motor vehicles. The court summed up the evidence as follows:
But other methods of acceptance were also recognized. As we stated in Hamerly v. Denton, 359 P.2d 121 (Alaska 1961) with respect to 43 U.S.C. § 932: See Clark v. Taylor, 9 Alaska 298, 303 (D.Alaska 1938); Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 209 (1945); Moulton v. Irish, 67 Mont. 504, 218 P. 1053, 1054 (1923). [B]efore a highway may be created, there must be either some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention to accept a grant, or there must be public user for such a period of time and under such conditions as to prove that the grant has been accepted.
Although R.S. 2477 is an offer by the federal government, it could be accepted by the public, according to the applicable state law governing dedications. ( McRose v. Bottyer (1889) 81 Cal. 122, 126 ( McRose); Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 ( Ball); Streeter v. Stalnaker (1901) 61 Neb. 205 [85 N.W. 47, 48]; Lovelace v. Hightower (1946) 50 N.M. 50, 55-64 [168 P.2d 846, 867-875] ( Lovelace); Standage Ventures, Inc. v. State of Arizona (9th Cir. 1974) 499 F.2d 248, 250; see Bader, Potential Legal Standards for Resolving the R.S. 2477 Right of Way Crisis (1994) 11 Pace Envtl. L.Rev. 486, 491, 502-503 ( Bader); Annot., Necessity and Sufficiency of Acceptance of Grant of Right of Way over Public Land for Public Highway (1917) 1917A L.R.A. 355, 359.) The federal government has acknowledged as much in administering R.S. 2477.
Thus, where the causes of action are the same the first judgment is a complete bar as to law and fact, and as to all matters which were or could have been presented to the court in the first action. See, Williams v. Krumsiek, 131 Cal.App.2d 411, 280 P.2d 486 (1955), and Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207 (1945). And, where the causes of action are not precisely the same, the first judgment is res judicata as to all matters which were actually tried and determined therein.
As reenacted it read as follows: `In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges. . . ." ( Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 [ 158 P.2d 207].) Sidewalks were specifically included within the definition of streets ( Heath v. Manson (1905) 147 Cal. 694, 698 [ 82 P. 331]; Short Line Associates v. City and County of San Francisco (1978) 78 Cal.App.3d 50, 56 [ 143 Cal.Rptr. 921]), and as noted, streets and highways were used synonymously.
The statute was enacted to encourage and facilitate settlements through a continuing offer to dedicate public land as highways. (See Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 [ 158 P.2d 207]; Town of Red Bluff v. Walbridge (1911) 15 Cal.App. 770, 779 [ 116 P. 77].) Defendants then correctly point out that a public road need not be a part of a "system of highways" for purposes of imposing county responsibility for maintenance.
They are not attacked by defendants, nor is complaint made that the court omitted to give any instructions requested by them. From all that appears the jury was fully and fairly instructed with respect to the principles which the defendants now rely on as demonstrating that the evidence shows an intention to dedicate for public use and establishes an acceptance thereof, implied by law from long-continued public use. See Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240-241 and 243-244 [ 267 P.2d 10]; County of Inyo v. Given (1920) 183 Cal. 415, 418 [ 191 P. 688]; Smith v. San Luis Opisbo (1892) 95 Cal. 463, 466-467 and 470-471 [30 P. 591]; Brick v. Keim (1962) 208 Cal.App.2d 499, 501-504 [ 25 Cal.Rptr. 321]; People v. Sayig (1951) 101 Cal.App.2d 890, 896-897 [ 226 P.2d 702]; Ball v. Stephens (1945) 68 Cal.App.2d 843, 846-847 [ 158 P.2d 207]; Richardson v. O'Hanrahan (1927) 83 Cal.App. 415, 421 [ 256 P. 1103]; 39 C.J.S., Highways, § 5, pp. 923-924; and 2 Witkin, Summary of Cal. Law (1960) Real Property, §§ 28-29, pp. 884-885. The jury, by its answer to the first of the specific interrogatories, and by its selection of the form of verdict, specifically found that there had been no dedication for public use.
[1] "If a different title, right or obligation is pleaded in the second action, the cause of action is different, even though the relief sought is the same. ( Ball v. Stephens, 68 Cal.App.2d 843, 851 [ 158 P.2d 207].) But if the second is based upon the same right or obligation the cause of action is the same even though different or additional relief is sought.