Hunting Washington Forum
Community => Advocacy, Agencies, Access => Topic started by: fireweed on February 01, 2017, 08:56:42 AM
-
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?
-
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.
-
Thanks!
-
Will be interesting to hear how that case goes.
-
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.
-
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.
:yeah: 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?
-
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
-
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.
-
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! :dunno:
-
I'm interested in this as well. Since it's on a map it sounds like a preexisting easement to me.
-
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.
-
Which means he should force the issue.
-
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
-
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.
-
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.
-
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.
:yeah: 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?
:yeah:
-
It doesn't quite seem right that he gets a ticket when the trail is on the map! :dunno:
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?
-
It doesn't quite seem right that he gets a ticket when the trail is on the map! :dunno:
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.
-
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.
-
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! :dunno:
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.
-
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.
-
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. :twocents:
-
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
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
I have this problem with a FS trail in WA.
It will be interesting to see the result.
-
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.
I'm not sure I'm tracking you. Landowners can already charge trespass fees, and do so. That's also why they don't and won't allow corner crossing and in this case are trying to block the trail. That stuff cuts down the fees they can charge. This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.
Maybe I'm missing what you're saying?
Edit: I agree wholeheartedly with you on the greed issue as a whole
-
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.
As of right now the sportsmen have nothing to lose because they aren't able to corner cross as it is. Landowners have a LOT to lose should someone ever challenge it in court.
This location here shows the importance of corner crossing, which a few dismissed as a non issue a few years ago.
No one has challenged this because it would entail a lengthy trial and appeal process and would be expensive. Whoever does is going to need deep pockets and/or the backing of some groups like BHA, TRCP, Wildlife Federation, etc.
-
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.
The downside is a misdemeanor on your criminal record.
-
A misdemeanor means nothing in the grand scheme of things.
-
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.
I'm not sure I'm tracking you. Landowners can already charge trespass fees, and do so. That's also why they don't and won't allow corner crossing and in this case are trying to block the trail. That stuff cuts down the fees they can charge. This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.
Maybe I'm missing what you're saying?
Edit: I agree wholeheartedly with you on the greed issue as a whole
I wasn't sure what he meant either? I'm sure the corner crossing issue will eventually be taken to court and I hope the public wins, it just doesn't seem right to be able to block access if a piece of public land corners up to another piece of public land, it seems you should be able to go corner to corner on public lands that touch. I wonder, how does Washington stand on this issue?
-
It is an unfortunate case but I'm sure glad some one is challenging it. I used to work on that district and also know a share holder of the hailstone (his uncles seem to make all of the decisions) so I hear both sides of it. I know a number of people that have used it but don't exactly want to come forward due to who there employer is.
-
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.
I'm not sure I'm tracking you. Landowners can already charge trespass fees, and do so. That's also why they don't and won't allow corner crossing and in this case are trying to block the trail. That stuff cuts down the fees they can charge. This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.
Maybe I'm missing what you're saying?
Edit: I agree wholeheartedly with you on the greed issue as a whole
I wasn't sure what he meant either? I'm sure the corner crossing issue will eventually be taken to court and I hope the public wins, it just doesn't seem right to be able to block access if a piece of public land corners up to another piece of public land, it seems you should be able to go corner to corner on public lands that touch. I wonder, how does Washington stand on this issue?
I think KF was being facetious. :chuckle:
Sent from my E6782 using Tapatalk
-
A misdemeanor means nothing in the grand scheme of things.
That's not true at all.
-
A misdemeanor means nothing in the grand scheme of things.
That's not true at all.
So you think a misdemeanor for trespass to make a legal point will have huge personal ramifications?
I'd love to know how.
-
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.
I'm not sure I'm tracking you.
Landowners can already charge trespass fees, and do so. That's also why they don't and won't allow corner crossing and in this case are trying to block the trail. That stuff cuts down the fees they can charge. - agreed, basically reworded what I had said but I'll add that we don't know the condition or history of this trail in dispute. I would like to know that to continue this debate
This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.
A corner cutting case would set precedent, and if courts find that a small amount of trespassing is OK (corner markers would be in dispute for accuracy, some trespassing would likely occur yadda yadda) that in effect erodes private property rights. (small amount of trespassing being OK) I personally could care less about corner hopping I think it's silly to disallow it. I would 45 degree my corner and robustly fence it leaving a path for people to go in if it were me. You can't really harvest hay in a corner anyways, they're usually full of weeds. On a side note I've had a corner marker be called into dispute multiple times, the neighbor disputed it and so I paid a survey guy to verify it. He literally moved it 6 inches. The neighbor wasn't satisfied so he called somoene else out, they moved it 6 inches back. Neighbor still wasn't satisfied and threatened to take it to court..fine take it to court it's been surved 4 times now...finally laid the issue to rest. Point is survey markers are subject to contention and in a corner jumping case this will come out. "is the trespasser crossing EXACTLY over the corner?" meh what do I know...
Maybe I'm missing what you're saying?
Edit: I agree wholeheartedly with you on the greed issue as a whole
I put multiple issues into very few words so sorry for the confusion; let me try to clarify. It was just a generic comment about greed and not being neighborly. If there wasn't the concept of trespass fees then landowners wouldn't be so hard line about making sure people stay out so they can maximize those dollars; but in pursuing those outfitter contract monies and trespass fee's they're creating public pressure to find ways to gain public access. Landowners are slitting their own throats here.
enter blm/usfs/dnr etc..
I worry that on behalf of public pressure these agencies are going to create access. Perhaps the threshold on what makes a trail will be very vague and existing use very hard to quantify or prove, so they draw a line on a map and brush out a trail..(or as I've said previously, blaze a trail through private property) someone gets a trespassing ticket. They've essentially created a prescriptive easement with a sort of "cozy lawsuit" (google that). The only ones seeing it as government abuse is the landowner, the hunting community cheers and private property rights take a back seat to democracy. The first few examples tested in court will be good ones, the trails will probably be decent existing trails and previous use documented then less and less with each new prescriptive easement. A slippery slope.
-
enter blm/usfs/dnr etc..
I worry that on behalf of public pressure these agencies are going to create access. Perhaps the threshold on what makes a trail will be very vague and existing use very hard to quantify or prove, so they draw a line on a map and brush out a trail..(or as I've said previously, blaze a trail through private property) someone gets a trespassing ticket. They've essentially created a prescriptive easement with a sort of "cozy lawsuit" (google that). The only ones seeing it as government abuse is the landowner, the hunting community cheers and private property rights take a back seat to democracy. The first few examples tested in court will be good ones, the trails will probably be decent existing trails and previous use documented then less and less with each new prescriptive easement. A slippery slope.
:yeah: Well said.
-
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. :twocents:
A lot of public lands aren't for recreational use so the landowner (government) has no duty to provide access for the general public nor seek it. They'll have their easements in place but that doesn't help the public any. In that regard there is no such thing as landlocked public lands, the owner will have access. I know you know all about that, but it's why your idea won't work. Lands designated for public recreational use has access for the public. You'll need to bark up a different tree, one that says "all publicly held lands shall be designated for public use unless it's of a sensitive nature" or some such.
-
KF,
This trespassing case won't address the corner hopping issue, as that was not any of the basis for the trespass charge. Also, the Attorney General's office issued a statement many years ago that corner hopping was considered a trespass. As I said, it's going to take someone with the time and backing of a number of sportsman's advocate groups to take that one on, and there is no guarantee of a win.
It makes me sad that the state of access is where it's at, but it's been building for years. I accessed some checkerboard USFS land in Gallatin County many years ago via a trail easement. The folks at the Ranger Station told me not to wander off the trail to pee unless I was within the forest boundary, because everything around it was part of a rather expensive elk hunting lease. It is what it is, I'll just continue wandering my public lands.
-
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
.” [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.”
The trail was recently cleared and marked, and apparently required being staked out and cleared. That would seem to indicate that the trail has not been in continuous use. At least not in recent years.
It's an interesting case. Wish there were more historical details available.
I wonder if the trespasser was part of the trail clearing party.
-
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
.” [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.”
The trail was recently cleared and marked, and apparently required being staked out and cleared. That would seem to indicate that the trail has not been in continuous use. At least not in recent years.
It's an interesting case. Wish there were more historical details available.
I wonder if the trespasser was part of the trail clearing party.
But wouldn't the actions of the Forest Service indicate that the trail is is in fact meant to be open and free to use? I could see a case where they had not put any effort into opening it up, then someone is caught using it...
-
Check out an old 1930's map. Trails lead from civilization to old mines or fire lookouts everywhere crossing multiple ownerships. The USFS doesn't need to create "new" trails because there are so many old ones out there! As logging took over the trails converted to roads and shortened toward the mountains were the trail still exists. I can think of two Mount St. Helens trails that are like this. They started in Toutle, crossed multiple ownerships just like a county road, and went to the Green River and Spirit Lake Mines. The remains of these trails now start on private land. They have been used since late 1800's.
But what is continuous use? Every day? every year? by how many? When a landowner blocks access for "fire danger" or construction does that negate continuous use of a trail/or road?
-
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! :dunno:
I would think USFS would also have some benefit from helping him win this case? Otherwise it sets a precedent that will get to the point that USFS has to pay to access their own land and maintain it? This is far from the only parcel they have that is landlocked. I have seen thread as about this on a few FB groups as well were people bought land that land locks govt land and refuse to allow anyone to access the Govt land. (I can understand both sides as land owner with high public traffic acros property and public person wanting to access "our" land.)
-
USFS, DNR etc will have their own easements behind a locked gate. Nothing is truly landlocked from the owners themselves only the publics access to it.
read reply #41 - this is specifically why I addressed bean counters post.
-
As of right now the sportsmen have nothing to lose because they aren't able to corner cross as it is.
Are corner crossers being actively charged and prosecuted in Montana?
-
USFS, DNR etc will have their own easements behind a locked gate. Nothing is truly landlocked from the owners themselves only the publics access to it.
The USFS and other agencies don't "own" public land. They manage it for the public who are the "owners" as citizens. They sometimes act like they own it, tho.
-
USFS, DNR etc will have their own easements behind a locked gate. Nothing is truly landlocked from the owners themselves only the publics access to it.
The USFS and other agencies don't "own" public land. They manage it for the public who are the "owners" as citizens. They sometimes act like they own it, tho.
I agree, but reality doesn't.
-
I'm siding with the State. Just because something is on a old map it does not mean 1) its correct and 2) it accurate. I have in front of me a quad sheet dated 1972. It shows a garbage dump and a ski hill just west of Liberty Lake Wa. Does that mean I can dump my trash and ski on peoples $500k house because it lists it on a map
-
I'm siding with the State. Just because something is on a old map it does not mean 1) its correct and 2) it accurate. I have in front of me a quad sheet dated 1972. It shows a garbage dump and a ski hill just west of Liberty Lake Wa. Does that mean I can dump my trash and ski on peoples $500k house because it lists it on a map
Well, if the dump and the ski hill still existed this might be a more valid comparison. No one is debating whether the trail has and does exist. The issue at hand is if a prescriptive easement exists.
-
Another perspective is that many owners paid a premium for their property with the understanding they would have access to public land that is restricted.
-
Another perspective is that many owners paid a premium for their property with the understanding they would have access to public land that is restricted.
And yet people buy homes next to the airport at whidby island naval air station and get thier panties in a bunch when a new squadron moves in.