Corner Crossing: A Solution

[Deleted member 28227]

States vary on what type of matter is subject to ballot initiative (statute, const amend, etc), but assuming a state provide for statute by ballot initiative an initiative could state that, "Trespass, civil or criminal, shall not include the act of . . . . and no liability or punishment shall result therefrom"

Alaska statutes seem to allow trespassing in specific circumstances, I would imagine similar statutes could be enacted for corners? This is essential what your saying correct?

AS 11.46.350 Definition; privilege to enter or remain on unimproved land
(b) For purposes of this section, a person who, without intent to commit a crime on the land, enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, is privileged to do so unless
(1) notice against trespass is personally communicated to that person by the owner of the land or some other authorized person; or
(2) notice against trespass is given by posting in a reasonably conspicuous manner under the circumstances.

 

[Straight Arrow]

jtm307, you're right that if you already have access by just stepping over a corner, that is a far better way to move forward than this.

I agree and would like to see it solidified by judicial precedent or by a clearly written new federal law.

 

[BuzzH]

Here is an example of a huge piece of public land that is legally accessible but only on foot and from only one point. Is this land really accessible for public use if you have to hike ~17 miles, not to mention you are competing with people in vehicles who are accessing the public by private roads on adjacent parcels?


The answer to your question is yes, it is possible by foot, been there to that exact place and done that.

Its not like you're hiking across a mountain range or through cliffs. Pretty easy hiking. A buddy and I hiked into that area, whacked 2 buck pronghorn and packed them out in a full day.

The problem with creating vehicle access in country like that is that people will be bombing all over it. As you mentioned there are a lot of roads in there already.

If you did open it to road access, it would only work if you severely limited where people could drive...again that's pretty tough with all the ATV's, Side by Sides, etc. I would be all for it if there was a way to just have main artery/access roads open and close the rest.

Even better would be just finding an easement on the south end of that area, foot traffic only. The furthest you'd ever be from an access point would be cut in half.

Another thing to consider is that under the BLM RMP, there is supposed to be a committee of citizens appointed to be looking into access into areas just like that. From personal communication with the BLM, there is no interest from the public to form the committee. In that conversation it was brought up that a couple landowners were/may be interested in an access easement.

 

[VikingsGuy]

In WY, merely stepping over a corner is a lot easier than any of these solutions. There is nothing in WY statute that prohibits corner crossing. There is no precedent either. The "airspace ownership" arguments that are frequently made don't apply because I have contact with public land and only public land at all times. The BLM Access Guide is not an authoritative source for determining the legality of corner crossing.

Sounds like WY courts are slowly creeping that way, but traditional common law was generally very literal about property rights and under some of the very restrictive principles there is almost no practical way to actually insure that you cross a corner exactly at the corner and without touching a single blade of grass of the private corners in doing so, and the "verticality" of property was generally assumed to be a property right which makes true "no-trespass corner crossing" physically impossible without a balloon/helicopter.

In the end, while I think the overly literal approach of the past is silly and if fully litigated many times in many courts (think serial environmental litigation) it would generally erode, many choose to (probably unnecessarily) forego (possibly) legal access rather than mess with the costs and consequences of litigating it out. For those folks an affirmative statutory solution (or an effective easement purchase solution) would be preferable in my view.

And as noted by AK statute reference above, many states choice to fix the rigid trespass rules of common law, but the West seems to be run by large land owners who have blocked common sense statutory clean-up more so than in other states.

 

[Deleted member 28227]

From personal communication with the BLM, there is no interest from the public to form the committee.

Do you have to be WY resident, is this a WY specific committee.

That was more a easy example to illustrate the issue, and my point is more are those sections of public at the terminus of the line accessible to the public, if access was equal to all users i.e. no motor vehicle use allowed on the entire piece I think it would be a different conservation.

I have heard similar arguments about the sabinoso wilderness, I'm sure there are a dozen or so other examples that fall in that bucket.

 

[BuzzH]

Sounds like WY courts are slowly creeping that way, but traditional common law was generally very literal about property rights and under some of the very restrictive principles there is almost no practical way to actually insure that you cross a corner exactly at the corner and without touching a single blade of grass of the private corners in doing so, and the "verticality" of property was generally assumed to be a property right which makes true "no-trespass corner crossing" physically impossible without a balloon/helicopter.

Pure bullshit argument. The way the law works is I don't have to prove my innocence...rather the onus is on the owner to:

1. Prove that I DIDNT cross exactly at the corner
2. Have proof I touched a blade of grass that was on his private, not hanging over airspace above his private.

This holds no water in court, and why its been thrown out in Wyoming.

Good luck prosecuting anyone for corner crossing when the landowners don't or cant provide proof of where the exact corner is and don't have a video or photo of you touching their grass in airspace. In this case, my GPS is better proof, or at least equal to his GPS...both using the same way to prove where the corner is.

Good grief...

 

[MTGomer]

Just to clarify.... for those reading this that may not understand;

Your Handheld GPS with multi meter accuracy, loaded with GIS grade linework do not show you exactly where the corner is.
Locating the physical stone, brass,aluminum etc survey monument from BLM/GLO and crossing at it is the way to go.

 

[BuzzH]

Just to clarify.... for those reading this that may not understand;

Your Handheld GPS with multi meter accuracy, loaded with GIS grade linework do not show you exactly where the corner is.
Locating the physical stone, brass,aluminum etc survey monument from BLM/GLO and crossing at it is the way to go.

d

Agree, if the corner exists...

 

[----]

Just to clarify.... for those reading this that may not understand;

Your Handheld GPS with multi meter accuracy, loaded with GIS grade linework do not show you exactly where the corner is.
Locating the physical stone, brass,aluminum etc survey monument from BLM/GLO and crossing at it is the way to go.

Yep. This is something that I think is greatly looked over on this topic.

I've worked on survey crews locating corners in the past. Even with survey grade GPS equipment, the original PLSS notes, shovels, and picks, it took hours to find many of the corner markers.

 

[Sytes]

Always enjoy your posts, N.R. It brings valuable consideration - agree or disagree. Thanks.

 

[VikingsGuy]

Pure bullshit argument. The way the law works is I don't have to prove my innocence...rather the onus is on the owner to:

1. Prove that I DIDNT cross exactly at the corner
2. Have proof I touched a blade of grass that was on his private, not hanging over airspace above his private.

This holds no water in court, and why its been thrown out in Wyoming.

Good luck prosecuting anyone for corner crossing when the landowners don't or cant provide proof of where the exact corner is and don't have a video or photo of you touching their grass in airspace. In this case, my GPS is better proof, or at least equal to his GPS...both using the same way to prove where the corner is.

Good grief...

Sorry if I implied burden of proof begins with the defendant - that was not my intent but an understandable inference from my text. But you are wrong about there being no way to prosecute trespass at a corner under the general legal framework I was discussing. And you are also wrong that all of WY has "thrown it out" to any degree of legal certainty, but rather as I understand it a sub-set of local counties are choosing not to prosecute (which is never the same as making it legal - see state/federal marijuana/immigration laws), and beyond that there are other states being discussed here beyond WY's baby-steps.

Here is the way a classic generic common law argument would go. I, land owner, saw you, alleged trespasser, go from public land square "SW" to public land square "NE" (and I have pictures and you have provided your GPS coordinates as evidence that you did did enter C via A) despite the fact that I own squares "NW" & "SE" and did not give you permission to access NW or SE in order to transport yourself from SW to NE. And because (again under the traditional common law) the corner is a near perfect geometric corner down to the inch, it is more likely than not (the civil trespass standard - but you could say beyond reasonable doubt if you are talking criminal) that you stepped on my property in the process regardless of how careful you thought you were being (GPS has only ~40" resolution for consumer use) Further, even if you some how miraculously cross the corner with a level of precision required to be at that exact point (maybe you can show you found an accurate surveyor's post), my property rights to NW and SE extend to at least 20 feet over ground level and even the most skill contortionist could not maneuver their body from SW to NE without entering my "property" above ground. This easily meets burden of proof requirements in this generic example. Of course the defendant can then raise all kinds of questions, like do my property rights really extend 20 ft above ground, etc. But you are now many $$$$$s into this argument. [I am not saying this is the specific law of any specific jurisdiction, but this is a generalized approach to where this issue would have started unless later "fixed" by clear appellate court ruling or statutory alteration]

I also don't agree that this has been simply fixed without any action. If your reading of the situation is spot on then there should be no push back from a simple technical correction to the trespass statute confirming no trespass on corner crossing, or incidental trespass associated with corner crossing (due to inherent GPS error etc). I am sure that would fly right through the legislative sessions in MT, WY, etc. without concern or comment (or maybe not).

There are hundreds of ambiguous, silly or rarely enforced laws that folks can choose to ignore - and to some extent we all probably do to some level, but to suggest this is fully and finally resolved across the West (even WY) I do not believe is accurate.

good grief

 

[BuzzH]

No, I'm not wrong, find me a case in Wyoming, from any court that has successfully prosecuted someone for corner crossing.

I can show you a case where it was thrown out.

I also question the 20 foot above ground "property right"...try constructing a 20 foot tall building, up "your" airspace on the exact corner of your property...good luck with that. You'll get something shoved up "your" airspace if you do.

 

[Trial153]

There a many ways Corner crossings can work. However the logistics is not the problem. The problem is the lack of will to address the issue. When Most of the corners in question occur on ranch land that the current owners also have de facto ownership of the BLM ( other lands types as well) and they make huge lobby in the form of big ranching and farming, no amount of logical solutions will get these people on board. Why in the world would they want to address the issue?

 

[Straight Arrow]

Here is the way a classic generic common law argument would go. I, land owner, saw you, alleged trespasser, go from public land square "SW" to public land square "NE" (and I have pictures and you have provided your GPS coordinates as evidence that you did did enter C via A) despite the fact that I own squares "NW" & "SE" and did not give you permission to access NW or SE in order to transport yourself from SW to NE. And because (again under the traditional common law) the corner is a near perfect geometric corner down to the inch, it is more likely than not (the civil trespass standard - but you could say beyond reasonable doubt if you are talking criminal) that you stepped on my property in the process regardless of how careful you thought you were being (GPS has only ~40" resolution for consumer use) Further, even if you some how miraculously cross the corner with a level of precision required to be at that exact point (maybe you can show you found an accurate surveyor's post), my property rights to NW and SE extend to at least 20 feet over ground level and even the most skill contortionist could not maneuver their body from SW to NE without entering my "property" above ground. This easily meets burden of proof requirements in this generic example. Of course the defendant can then raise all kinds of questions, like do my property rights really extend 20 ft above ground, etc. But you are now many $$$$$s into this argument. [I am not saying this is the specific law of any specific jurisdiction, but this is a generalized approach to where this issue would have started unless later "fixed" by clear appellate court ruling or statutory alteration]

Much legaleze fluff there. It suffices to say that there is absence of legal precedent in Wyoming or elsewhere and it would be good to resolve the issue.

Why in the world would they want to address the issue?

Obviously they do not. It's public land owners and users who would like to access their public lands at corners and however. Unfortunately, no individual or group has pursued the issue to any resolution. Thus all the many hypothetical and "someone should" discussions such as this thread. Like they say, "Talk is cheap."

 

[jryoung]

spatial analysis....converted to vertices....only one vertex

I feel like I'm playing minesweeper

 

[Topgun 30-06]

Vikingsguy---It is my understanding that Montana has an actual statute that makes corner crossing illegal even if the corner is well marked by some type of a legal surveyor pin or similar designation. Wyoming, on the other hand, doe not have anything on the books that makes corner crossing to hunt or fish legal or illegal. That is why G&F lost that type of case in Albany County when the hunter entered a not guilty plea on a ticket he received and the Judge dismissed the case. That then caused the G&F Director to issue a directive that GWs would no longer issue a ticket if a landowner complained that was how a person got to legal public land when they owned the adjacent properties. I believe a followup comment by the AG was that a person could possibly be prosecuted for criminal trespass, but not under the G&F statutes because there were none if a person had no intent to stay on the private land. That now leaves it up to the Sheriff Department in each county as to whether they will write a ticket if a land owner contacts them and before they do that they have to know if their County Prosecutor will prosecute a person who enters a not guilty plea and goes to court like the guy did in Albany County. You may know all of this, but I thought I'd throw it out so others that don't know about the technicalities of corner crossing are at least in those two states.

 

[Deleted member 28227]

When Most of the corners in question occur on ranch land that the current owners also have de facto ownership of the BLM ( other lands types as well) and they make huge lobby in the form of big ranching and farming, no amount of logical solutions will get these people on board. Why in the world would they want to address the issue?

Always annoys me when you see properties at land sales that state "Beautiful 5000 acre property, 800 acres deeded"... so you using the fact that you are holding 4200 acres of our land hostage as a selling point. (And yeah I get this has to do with grazing allotments... but it still rubs me the wrong way.

 

[Trial153]

Always annoys me when you see properties at land sales that state "Beautiful 5000 acre property, 800 acres deeded"... so you using the fact that you are holding 4200 acres of our land hostage as a selling point. (Any yeah I get this has to do with grazing allotments... but it still rubs me the wrong way.

I agree, absolutely understandable.

 

[VikingsGuy]

No, I'm not wrong, find me a case in Wyoming, from any court that has successfully prosecuted someone for corner crossing.

I can show you a case where it was thrown out.

If not appealed to highest court - then not actually that relevant to our discussion - if you have the citation handy I would happy to become educated.

As for me finding you cases, when folks pay fines rather than fight, and when folks vacate a location after being threatened with fine or arrested by a sheriff's deputy those don't end up in published case law -- but I am sure the collective HT user base has evidence of those. Absence of published case law on a point does not actually set the law (because we "inherited" the British common law as starting point until changed by appellate precedent, statute, regulation or constitutional amendment).

And for clarity - I am not saying if properly litigated that a corner crosser wouldn't ultimately prevail, but I am comfortable saying that despite your certainty that their are land owners and local officials that can make a hunters life miserable until this is properly settled (by stature, regulation or binding precedent)

I also question the 20 foot above ground "property right"...try constructing a 20 foot tall building, up "your" airspace on the exact corner of your property...good luck with that. You'll get something shoved up "your" airspace if you do.

That's a zoning question (or a "line of sight/view/panorama" rights question) not a trespassing question when it comes to me going vertical on my property. So your point is pithy but entirely off base from a legal perspective. As for the present question - what about when I enter space above someone else's property? I am fairly sure you are in favor of limiting my ability to use some amount of elevation above your property - in the alternative I could just build a bridge over the top of your house and then build my house on top of the bridge - no trespass? So of course you can trespass above another person's property.

While common sense suggests that corners should be treated differently than the middle of the property, that is just not the case unless the law (not anecdote or local sheriff enforcement or transient attorney general opinion) is changed by the legislature, appellate courts, regulatory bodies or at the ballot box.

 

[BuzzH]

Vikingsguy---It is my understanding that Montana has an actual statute that makes corner crossing illegal even if the corner is well marked by some type of a legal surveyor pin or similar designation. Wyoming, on the other hand, doe not have anything on the books that makes corner crossing to hunt or fish legal or illegal. That is why G&F lost that type of case in Albany County when the hunter entered a not guilty plea on a ticket he received and the Judge dismissed the case. That then caused the G&F Director to issue a directive that GWs would no longer issue a ticket if a landowner complained that was how a person got to legal public land when they owned the adjacent properties. I believe a followup comment by the AG was that a person could possibly be prosecuted for criminal trespass, but not under the G&F statutes because there were none if a person had no intent to stay on the private land. That now leaves it up to the Sheriff Department in each county as to whether they will write a ticket if a land owner contacts them and before they do that they have to know if their County Prosecutor will prosecute a person who enters a not guilty plea and goes to court like the guy did in Albany County. You may know all of this, but I thought I'd throw it out so others that don't know about the technicalities of corner crossing are at least in those two states.

Mostly right, but the reason that the GF Director(s) are instructing their wardens to not sratch the ticket is because of ex State AG, Pat Cranks legal opinion that it is not a hunting violation. The case in Albany County may have been what spurred the AG legal opinion.