Hunter tests access rights to USFS land

[fireweed]

http://billingsgazette.com/lifestyles/recreation/bozeman-man-tests-forest-trail-easement-to-crazy-mountains-in/article_82e7e7d1-e7af-53a9-8560-2218a875ec7f.html

From Montana--hunter using historic trail that crosses private land enroute to USFS land is charged with trespassing, and is going to fight it out in court.  Good read and worth the quiz to get access to the article.  Can someone figure out how to post text?

[Blacktail Sniper]

I think I got it all for you:

A Bozeman man cited for trespass on a contested Forest Service trail along the eastern base of the Crazy Mountains has pleaded not guilty in order to challenge the landowner’s claim in court.

Rob Gregoire used the route, marked as Trail 115/136 on Forest Service maps, to access public land while hunting elk on Nov. 23. After the day of hunting he hiked out on the same trail and found a Sweet Grass County Sheriff’s deputy waiting for him.

“He was very polite and gave me a ticket,” said Gregoire, a Montana native who has been hunting since 1981.

The $585 criminal trespass citation was issued to Gregoire for crossing the Hailstone Ranch, owned by Lee and Barbara Langhus. Gregoire pleaded not guilty in December and an omnibus hearing is scheduled for February in Sweet Grass municipal court.

“We need to stand up for what’s ours,” Gregoire said.

Challenging the citation has earned him moral support from some individuals as well as a few public access and hunting groups, he said. Although a different issue, in October a federal judge in Butte ruled in the Forest Service’s favor in its access lawsuit along the Indian Creek Trail where it crosses a private ranch in the Madison Mountains, south of Ennis.

The Crazy Mountains are an anomaly in Montana. Most mountain ranges in the state are federally owned, but the Crazies are a patchwork of private and Custer Gallatin National Forest lands intermixed. More than 8,000 acres of forest land in the Crazy Mountains is only accessible by crossing at the corners of where the parcels meet, the legality of which has yet to be tested in court.

The private inholdings are remnants of the 50,000 acres in the Crazies given to the Northern Pacific Railroad by the U.S. government in the 1860s as payment for building the transcontinental rail line. In the 1890s the railroad began selling the lands to individuals, among them were the Langhuses’ ancestors.

Because of the lack of public access on the eastern side of the Crazy Mountains, as of 2015 the elk herd in Hunting District 580 was more than 2,000 elk over the Montana Fish, Wildlife and Parks’ recommended levels, one of the worst areas in the state.

Gregoire said he attempted to gain access to the hunting district by requesting permission in another area, but was told he’d have to pay an access fee. So he talked to the Forest Service about using Trail 115/136 to make sure he didn’t trespass.

Blocking and posting no trespassing signs at the head of Trail 115/136 prompted Yellowstone District ranger Alex Sienkiewicz to organize a trail clearing and marking trip this past summer. Prior to that the agency traded letters with the Langhuses’ Livingston attorney, Joe Swindlehurst, who has denied there is an old forest trail at that location.

In one letter Swindlehurst countered Sienkiewicz’s claim that a prescriptive easement exists saying it “must be proved by clear and convincing evidence. It is not up to my clients to prove that no prescriptive easement exists across their land. If the Forest Service or the public thinks there is a prescriptive easement across the land, then it is up to them to prove it.”

“I guess I’m the test case,” Gregoire said.

[fireweed]

Thanks!

[Curly]

Will be interesting to hear how that case goes.

[pianoman9701]

Unless he can find evidence of an easement, he's going to be out $585. It sucks but throwing it out without that evidence endangers landowner rights. I hope he wins.

[bearpaw]

Unless he can find evidence of an easement, he's going to be out $585. It sucks but throwing it out without that evidence endangers landowner rights. I hope he wins.

  If there is no easement across the private land then he would be trespassing. However, why is the trail marked as a forest service trail on the map, seems like something is missing in this story?

[bobcat]

It's going to cost much more than $585. He's spending thousands of dollars on an attorney as well. But he is getting some help from other hunters. He's received over $5,000 in donations.

http://www.emwh.org/Rob%20Gregoire%20Crazy%20Mountain%20Access%20Defense%20Fund.htm

[Curly]

You never can tell how land use court cases will end up. A good attorney may be able to successfully argue that prescriptive rights exist. The USFS apparently believed that to be the case.

[bearpaw]

I had to google this, I wasn't sure what it meant:

http://legal-dictionary.thefreedictionary.com/prescriptive+easement

prescriptive easement
n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion. (See: prescription, easement)

I have on many occasions checked with the USFS to ascertain if an easement existed to avoid landowner problems that I suspected might occur. Even after checking with USFS I have had landowners try to tell me there is no access, I refer them to the USFS or invite them to call the sheriff, that is usually the end of the argument. Since this trail is on the map I think the guy may win the case, it will be interesting to see what happens. It doesn't quite seem right that he gets a ticket when the trail is on the map!

[Special T]

I'm interested in this as well. Since it's on a map it sounds like a preexisting easement to me.

[fireweed]

If the land has no written, documented easement Tte key is the legal definition of "prescriptive easement" in Montana. In general, if you look up what prescriptive easement means, and the trail has clearly been used by the public for more than five years, he should win.  I would suspect the landowners or county might choose to NOT prosecute since if he wins, the trail is no longer a grey area and has crystal clear public access. 

[Special T]

Which means he should force the issue.

[Bob33]

http://www.montanalawreview.org/mont-l-rev/new-prescriptive-easement-law-montana-supreme-court-expands-public-access-private-land-public-lands-access-assn-v-board-county-commissioners-madison-county/

A. Prescriptive Easements

Today’s prescriptive easement is a product of centuries of English and American common law dating back to before 1275. [6] Prescription gives a property interest to “someone who makes an unauthorized use” of another’s property for a “sufficiently long period of time.”[7] The English courts developed the fictional “lost grant” as a way to effectively allow prescriptive use; the fiction being that, after a set number of years, the adverse users of land were presumed to have lost their “grant conveying the right of use.”[8] As a result of the fictional lost grant, prescriptive easements could only exist if the adverse use “could have been the subject of a grant” in the first place.[9] The law of prescriptive easements has been accused of rewarding the “ad hoc use of a trespasser” over the planned use of a landowner, raising the question: “Can it be fair to reward a wrongdoer and punish an innocent property owner?”[10] The fact that American jurisprudence has continued to uphold prescriptive easement law indicates that the answer is yes. However, each state validates the law of prescription in different ways.

In Montana, prescription invokes over one hundred years of common law jurisprudence that governs the creation, breadth, and scope of prescriptive easements.[11] A public or private prescriptive easement is “created by operation of the law.” [12] To establish either easement, the party claiming the easement must show “open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement . . . for the full statutory period.”[13] The statutory period for adverse use is five years.[14] Establishing a public road by prescription further requires that the public “have pursued a definite, fixed course, continuously and uninterruptedly.”[15] This definite and fixed path may not “permit of any deviation.”[16] Accordingly, the public’s use of one part of the road does not give the public any claim to land beyond what has been publicly occupied.[17] The public can gain a prescriptive easement through adverse use of only that land used during the full statutory period. [18] Further, the public’s acquired right “can never exceed the greatest use made of the land for the full prescriptive period.”[19] A “secondary easement” is granted incident to the grant of a prescriptive easement for the purpose of repairing and maintaining the easement.[20] This secondary easement gives the owner of the easement the right to “enter upon the servient estate and make repairs necessary for the reasonable and convenient use of the easement.” [21] However, this right “can be exercised only when necessary” and must be exercised in a way that does not “needlessly increase the burden upon” or unnecessarily injure the servient estate.[22] This standard for reasonable use of a prescriptive easement is well-established in Montana.[23] The Supreme Court’s decision in Public Lands Access Ass’n upsets the established precedent regarding prescriptive easements and raises questions about future application of the law of prescription

[Special T]

I know in our state that if there is a trail on your property that kids have been using  to get to school (example) you cannot fence or block it off.  I know this from a nearby land owner and seen the issue come up before.

There is no written easement, but the use  over a long period of time negates the need.

Not all that different from the law of adverse possession, and if I'm not mistaken adverse possession isn't allowed against government compared to private party confrontations.

I know there was a discussion about this with the Mount Vernon City parks, where adjacent land owners would attempt to incroach on the park land. Despite any time length they had to remove structures such as fences.

[Sumpnneedskillin]

I was curious so I did some looking at historical USGS quad topo maps.

The 1972 version shows a "pack trail" on the south end.  No other parts of the trail show.  The 2000 version shows the whole trail.