Hunter tests access rights to USFS land

[wsmnut]

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?

 

[Sitka_Blacktail]

It doesn't quite seem right that he gets a ticket when the trail is on the map!

Then there is this from the story above.....

"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."

That would beg the question, did the people in  the trail clearing party and the Ranger get charged with trespassing?

[JLS]

It doesn't quite seem right that he gets a ticket when the trail is on the map!

Then there is this from the story above.....

"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."

That would beg the question, did the people in  the trail clearing party and the Ranger get charged with trespassing?

No, they were not charged with trespassing.

[huntingfool7]

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.

A critical part of adverse possession means that you have done something to prevent the landowner from using that part of their property and have maintained it for a certain time frame.  On the surface it sounds similar but there is a big difference.
 
In this case, 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. 

It'll be a critical part of this case to show that there has been uninterrupted public access to the trail for the prescribed time frame.  Given the limited information that we have here, that part is likely a difficult hurdle that I expect will fail.

[JLS]

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!

One of the requirements of a prescriptive easement is that there has been continued use.  For example, if a pack trail was used for 80 years as a prescriptive easement and no legal written easement was granted, the prescriptive easement could be rendered invalid if use stopped.

There was a similar case in Madison County that was ruled upon last year, and the Forest Service prevailed in their claim for a prescriptive easement.  Documentation on a map is a good start, but there must also be continued public use.

[Special T]

Yes but if hasn't been used because the land owner has illegally posted and threatened by calling the sherrif  the land owner has broken the law.

[Bean Counter]

IMHO if a landowner is effectively able to control 100% of the access to "public" land, they should have to pay some sort of punitive/confiscatory tax on it if they don't allow some sort of public access to it. 

[NumaJohn]

This is a compelling issue, and I am thankful to the hunter for being the test case. Will be worth watching for the outcome.

I wonder...if he loses, then might that give the ranchers cause to sue the USFS, the ranger, and the work party that did the trail maintenance? The outcome of this test case could have significant ripple effects and set a precedent for future land battles.

I also wonder how Cliven Bundy would react if a hunter located such an (alleged) trail on the Bundy Ranch and tried to do as this Montana hunter has. Would Bundy make a claim that prescriptive easements don't apply, just as federal land leases apparently do not? Would Bundy sue, as well? Yes, I'm guessing he would!

John

[KFhunter]

No information was provided why there was a line on a map, if it was an old pack trail continually used then I'd have to agree with the easement. 
If they just drew a line on a map, waited a bit for people to use it, brushed it out, then set up a court case I'd be against that.

[Bob33]

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.

I found it interesting that the issue of corner crossing was also mentioned.

[Special T]

It sounds like there are a lot of issues at play here. It's possible even if one part is not upheld something like the corner crossing rule could provide some relief.

Fortunately the down side of being the test case for this issue isn't a lot of $. Granted taking it to court costs $ but the fine isn't that much.

I don't see people lining up to be the test case in Seattle to face the Concield Carry issue in places like safeco or century link feilds... the down side is much bigger.

[Bob33]

As I understand it, the issue of corner crossing in Montana is huge and neither sides wants to risk losing in court so it continues to be unresolved.

[Sumpnneedskillin]

It looks like the pack trail left a Guard Station and headed North which then met up some "roads".  It looks like the roads are outside the NF boundary.  It looks like on the south end the trail weaves in and out of the NF boundary but towards the north in it appears to be all in the boundary.

I also looked at Google earth.  Imagery data is from 2013 and you can see the south end of the trail clearly and I'm able to find bits and pieces of it headed north.

[KFhunter]

It's just danged unfortunate greed is going to erode private property rights in MT and other western states.  They stand to loose a lot of money not being able to sell trespass fees to hunt a public resource (Elk).  Since these fees are generating substantial revenue they won't be neighborly and allow corner jumping and do everything they can to make sure to cut off access.

Add outfitters to the mix and man what a mess.

[2MANY]

I have this problem with a FS trail in WA.

It will be interesting to see the result.