Corner Crossing: A Solution

[VikingsGuy]

Randy, in the case of civil trespass, doesn't the individual have to file suit against you for trespassing?

If that's the case, the typical punishment is an award (in the form of money) from any damages you cause from your trespassing?

What would a judge award a plaintiff for occupying their air space for maybe 1 second, never doing any "damage" to anything physically on their property? Would the plaintiff not have to prove damages to receive compensation?

To that, if I was the land owner I would argue the harm is value I could have received for granting access - let's say $500. It's like the question if a movie theater is really harmed if you sneak into a theater that has open seats, they were going to play the movie anyway what's the harm? The answer is 'yes' there is harm, you denied them the ticket price. And if I am the land owner I claim $2,500 is the value of the trespass and that you did so knowingly and with disregard to the law and ask for $25,000 in punitive damages. And now you have to hire a lawyer and defend against those ridiculous damage calculations or they win by default. Which is pricey for any of us but even more trouble for the out of state hunter because you end up having to go back for various hearings/trial. So while I agree less of a risk than criminal, it's also a process best avoided.

And similar to how I read/heard BigFins' assessment, I think he (and others) don't want to intentionally dishonor/breach the valid property rights of another fellow citizen even if the resulting legal damages would be small. There are all kinds of things we can do and get away with them, but it doesn't make them right. Statutory/judicial fix or easement purchases solve this "moral dilemma".

 

[----]

Seems like any solution, whether it be the purchase of individual easements, or a wholesale legalization, would require a fair amount of surveying/marking to be above board.

Most definitely. I think you've outlined in your original posts a very reasonable way forward to deal with the issue. Landowner cooperation would be a son of a bitch, but at least it doesn't require a court ruling or ballot initiative to make work. I have a feeling those would be some very expensive 1/4 acre chunks of land.

I've heard horror stories wllm, I'm thankful I work in the new world. Point being is it's much more complicated then using your phone app and winging it.

 

[VikingsGuy]

Seems like any solution, whether it be the purchase of individual easements, or a wholesale legalization, would require a fair amount of surveying/marking to be above board.

A statutory solution would not require that. Many states already "forgive" unintentional or incidental non-destructive trespass. You just have to say that, "incidental, non-destructive trespass in the course of a good faith effort to traverse between to parcels of land (that the alleged trespasser otherwise has rights to be present) via corner crossing shall not give rise to any criminal or civil cause of action for trespass." Then you would just have to use maps or GPS to make a reasonable effort to cross at a reasonably understood corner. In general, the law often does not require complete certainty and rather relies on "intentions" and "reasonable understandings".

 

[Big Fin]

Randy, in the case of civil trespass, doesn't the individual have to file suit against you for trespassing?

Yup. That is why many landowners want to keep it in the criminal arena. In criminal, it is the state/county/authority who is handling enforcement. In civil, the landowner would have to bring the claim against you.

If that's the case, the typical punishment is an award (in the form of money) from any damages you cause from your trespassing?

Exploring this with attorneys, I am led to understand that the damage doesn't necessarily have to be measured in financial terms. The payment or restitution is always monetary, even if the damage is some other non-monetary form of damage.

On the surface, the damage seems almost zero. When you start reading what courts interpret as "damages" in civil cases, the list gets very long and strange. It is how we come up with emotional damages, punitive damages, damages for (insert crazy claim here). I wouldn't equate it to being merely the low/negligible damage to the property itself from stepping over it. In court, the judge/jury could have a very wide scope of what those damages are.

What would a judge award a plaintiff for occupying their air space for maybe 1 second, never doing any "damage" to anything physically on their property? Would the plaintiff not have to prove damages to receive compensation?

Yes, they have to prove the damages, whether monetary or other damage. The attorneys tell me it would be a summary judgement against the trespasser. What damages would exist, who know, but I would refer to the answer provided to the question above.

Criminal trespass, If I recall correctly, is enforced by sheriff or other LEO and prosecuting attorney and you're subject to a fine/prison time.

Yes. Some states it also can come with loss of hunting/fishing privileges. In civil, it is merely monetary compensation for damage/infringement. That is one of the important distinctions between civil and criminal trespass.

Seems to me that if most jurisdictions would view it as civil trespass, I'd be wayyyy more inclined to corner cross vs. doing the same with the threat of criminal trespass.

I suspect most people would view it similarly.

And that is also why the MT Legislature has tried to pass laws that set a minimum damage for civil trespass. Last time they wanted to make it a $1,500 minimum damage, even if the actual damage was zero. If we start opening up the smaller can of worms that is criminal trespass, expect state legislatures to open up the bigger and more complicated can of worms that is civil trespass.

 

[Deleted member 28227]

A statutory solution would not require that. Many states already "forgive" unintentional or incidental non-destructive trespass. You just have to say that, "incidental, non-destructive trespass in the course of a good faith effort to traverse between to parcels of land (that the alleged trespasser otherwise has rights to be present) via corner crossing shall not give rise to any criminal or civil cause of action for trespass." Then you would just have to use maps or GPS to make a reasonable effort to cross at a reasonably understood corner. In general, the law often does not require complete certainty and rather relies on "intentions" and "reasonable understandings".

Seems like this is the only way the public could access the truly checker boarded public lands.

 

[VikingsGuy]

If we start opening up the smaller can of worms that is criminal trespass, expect state legislatures to open up the bigger and more complicated can of worms that is civil trespass.

A proper solution should involve opening them both - and if we have to votes to win one we would likely have the votes to win the other. But if we don't have the votes then it is a non-starter.

As for retaliation from land owners such as withdrawal from voluntary access programs, I wonder what the real trade-off would be vs the threatened? How many land-owners would really be that vindictive? Of those who went tit-for-tat, how much land would be actually lost vs gained by the new open checkerboard land? I think understanding if they could do more harm than good is an important consideration, but I would not just assume it to be the case.

And the more likely way in 2019 to handle this is to show you have the votes to exempt corner cross from criminal and civil trespass, but then offer a compensation scheme as a carrot to reduce the fight - there are other areas of the law that set up psuedo-mandatory program participation as a way of softening the need to push the public interests over the individual's. By this I mean, corner crossing for the purpose of accessing public lands would become fully legal but all corner owners would get some meaningful but manageable payments, and PL users would have some type of "stamp" fee to be able to access the corner crossing "easement" that could fund it. This ends up cheaper, faster and cleaner than full blown easement initiatives parcel by parcel.

A threat to impute the added value of public land access control to property tax assessments of deeded land is another stick in the negotiation if the legislatures really wanted this to move. But I gather the collective public in MT and WY are fine with status quo - and in the end it is their call. (unless the Feds wanted to preempt for access to federal public lands - which they already have on their own account)

 

[VikingsGuy]

In addition to adding access to "locked" public lands, a pro-corner crossing legal framework would likely reduce (not eliminate) the value of/demand for outfitters via simple supply/demand curve. That shift may also reduce the "going-rate" for trespass fees where outfitters are not involved, and make participation in the fee for access programs offered by many states (WIA, etc) more desirable as they would pay more than now relatively speaking.

 

[VikingsGuy]

Seems like this is the only way the public could access the truly checker boarded public lands.

Like Trial153 said a page back, there are plenty of legal ways to get this done - what we lack is political will/support to act.

 

[BuzzH]

Yup. That is why many landowners want to keep it in the criminal arena. In criminal, it is the state/county/authority who is handling enforcement. In civil, the landowner would have to bring the claim against you.




Exploring this with attorneys, I am led to understand that the damage doesn't necessarily have to be measured in financial terms. The payment or restitution is always monetary, even if the damage is some other non-monetary form of damage.

On the surface, the damage seems almost zero. When you start reading what courts interpret as "damages" in civil cases, the list gets very long and strange. It is how we come up with emotional damages, punitive damages, damages for (insert crazy claim here). I wouldn't equate it to being merely the low/negligible damage to the property itself from stepping over it. In court, the judge/jury could have a very wide scope of what those damages are.




Yes, they have to prove the damages, whether monetary or other damage. The attorneys tell me it would be a summary judgement against the trespasser. What damages would exist, who know, but I would refer to the answer provided to the question above.




Yes. Some states it also can come with loss of hunting/fishing privileges. In civil, it is merely monetary compensation for damage/infringement. That is one of the important distinctions between civil and criminal trespass.




I suspect most people would view it similarly.

And that is also why the MT Legislature has tried to pass laws that set a minimum damage for civil trespass. Last time they wanted to make it a $1,500 minimum damage, even if the actual damage was zero. If we start opening up the smaller can of worms that is criminal trespass, expect state legislatures to open up the bigger and more complicated can of worms that is civil trespass.

That's how I understand things too...in the case of Wyoming, whether viewed as civil or criminal trespass, either way it absolutely is NOT a hunting violation to cross a corner. Therefore there can be no loss of license privileges, no forfeiture of any game animals taken on public land, etc. The WGF will not cite for it because there is no intent to hunt private property when crossing from public to public.

Also, in either case, if a judge simply rules in your favor, which has happened here...nothing happens.

One last point of clarification...in the case of either civil or criminal trespass, is the owner required to either verbally, or through signage, make it clear that no trespassing is allowed?

I know for hunting, if your INTENT is to hunt private, permission is required regardless of signage. But, in the case of corner crossing in Wyoming, its strictly an issue of trespass in regard to corner crossing because there is no intent to hunt the private.

In other words, for strictly trespass (taking the hunting out of it as per the WY AG opinion), is there not a need for the landowners to inform the person they are trespassing? If yes, then the first time you corner crossed, there really is no trespass unless its been signed or you've been warned once.

I think this will only be decided when an ignorant landowner chooses to prosecute, an even more ignorant prosecutor does it, and an even more ignorant judge rules it trespassing based on the crossing of public to public. That sets the stage for appeal to a court where precedent can be set one way or the other.

If I were a landowner there is wayyyy more for me to lose by prosecuting than just looking the other way when a handful of people per year jump a corner from public to public.

 

[VikingsGuy]

One last point of clarification...in the case of either civil or criminal trespass, is the owner required to either verbally, or through signage, make it clear that no trespassing is allowed?

In WY criminal trespass, notice is required - but it is left open for judgement how much, where, how frequent posting carries the day. So if there was a large parcel and as you got close you saw (or would have seen if you were paying attention) a NO Trespass sign, but drove a further and came to the property from a different angle far from the road and crossed where there was no sign, did you have notice? In MN they actually recite the size, content and frequency of posted notice - WY seems to leave it up in the air.

WY civil trespass is not codified and I don't have the time to do case law search, but traditionally the base common law was not kind to trespassers and tended towards strict liability (meaning your intent or knowledge is irrelevant). But that may have soften under various court rulings over the years.

All in all I agree with you that for a local who is careful about their crossing and willing to put up with the hassle this probably doesn't matter. But for non-res and those who want to honor the spirit of the law it would really be nice to get fixed - but I am not holding my breath.

 

[joelweb]

Thank-you for your analysis and obviously long-considered solution to a longstanding complex issue. 'Hope this does not offend you. However, simply put that's a helluva lot of easements and likely in a disjointed inconsistent array ... with the respective large amount of kaching-kaching $$$ coming from where? Easements' administration, stiles, maintenance of stiles, lack of stiles due to no fencing, and a myriad of other ongoing concerns result in an enormous and inconsistent complexity.

During this era when USFS and BLM cannot even field a viable noxious weed mitigation program, is a stiles' access program realistic?

I do agree a clean solution to the issue is unlikely, yet my personal support would be for a legal resolution, one that would apply consistently across-the-board to each and every "corner crossing" point for public access to public land. Whether that would result from litigation evolving up through the highest levels of the judicial system or by Congress tackling the issue, it's not apt to be an easy process. But for whatever it's worth ... that's my take on such an easement stiles' solution.

The Land and Water Conservation Fund can be used to finance easements. The bill likely to eventually pass includes a dedicated access fund of 3 percent, or as much as $27 million annually. The federal agencies could just by a couple acres at the corner, but easements work too.

 

[Bullshot]

OP, please if you have got the time, run your GIS model on the data you have and prepare a “Top Ten” list of bottlenecks that will clearly and concisely illustrate the problem and the potential solution. With examples like that, it would not be a stretch to expect some additional buy-in from the public and then hopefully some influential decision makers (political solution) or non-profit money to purchase easements. If this becomes a trend, and particularly if there are competing corners wherein the first adjacent private owner to sell easements stands to make all the money, this could open the floodgates, per se. Even if the easements are pricey, it would be far less than raw-land acquisition, and therefore more bang for the buck for moneys dedicated to this sort of thing. What is the law on Ballot initiatives? How many signatures are needed to get one on the ballot and raise funds? This could keep it out of the courts and still respect existing private property sensibilities. Are there other non-hunting stakeholders that have been engaged with this issue, Trout Unlimited, hiking/trail associations, Audubon, Public Lands Alliance, etc? It doesn't affect just hunters, it denies access to anyone. Sorry if my comments are simplistic but I am admittedly not well versed on the history of the issue as has likely been discussed at length on this and other forums already. Would be nice to hear progress on this in future, it is hard to take that so much public is essentially privatized over want of a 3 foot strip.

 

[Bigjay73]

I love the GIS analysis.

Couple thoughts

1. River access, could be a solution for Montana but many other western states don't have stream access laws, and hiking up a river doesn't count even in Montana so travel would have to be one way and you would need close river access points. In my mind if you have to do a 10 mile float to hit the corner of a parcel that you then have to walk 6 miles across to get to a easement that then lets you get onto a chunk of land that makes access legal but prohibitively difficult. Generally speaking I would toss out rivers as access points for a global analysis, I think they work as access points only in very specific instances. 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?

View attachment 92698

2. Legal roads, public roads aren't set in stone. Sometimes counties decide they don't want to maintain a road and then it becomes private, what happens then? There are lots of issues with people gating public roads?

3. Do we want to cede the idea that corner crossing is illegal and that we need easements? Right now it's a bit of a gray area, and it seems it might be more advantageous to the public to argue that it's legal to corner cross.

4. Along with point 3, what if there was a pseudo eminent domain and or land swap that created a 3 ft easement at every corner statewide? Maybe you do a mandatory swap at each corner, red in example goes to fed or state, green goes to land owner (blue is public land)
View attachment 92696

Generally speaking I think this is a great method of identifying access points if and when we, public land owners, decide it's the only option we have left. Land access is a really hairy problem and I think that a large scale solution might better serve everyone.

Is it sad that I know where your example map is from? Unfortunately, I dont think the public road goes all the way to your starting point.

 

[Bigjay73]

I would like to see a number of just how many acres would be opened up by allowing corner crossing. The fact that it's even an issue is mind boggling. Public touches public, but you can't access it. Frustrating as hell. What are the chances someone who is ticketed for this could take it all the way to the supreme court?

 

[Bullshot]

I hope no matter what your opinion on the matter you have already sent a letter to your Senator and then start working on congressmen/women. It takes about 5 minutes on their web pages. They are constantly debating Public Land issues and not always for the better, but might as well get this issue -or keep this issue- on their radar, as weeds-deep as it might initially sound to them.

 

[Yellowstoner]

It's always been my belief that we should not allow private individuals access through public land parcels unless they return the favor. In the case of the Crazies, there are places where the public is paying to maintain roads they are not able to use. This would solve the vast majority of corner crossing issues. A man can dream can't he?

 

[Nameless Range]

OP, please if you have got the time, run your GIS model on the data you have and prepare a “Top Ten” list of bottlenecks that will clearly and concisely illustrate the problem and the potential solution. With examples like that, it would not be a stretch to expect some additional buy-in from the public and then hopefully some influential decision makers (political solution) or non-profit money to purchase easements. If this becomes a trend, and particularly if there are competing corners wherein the first adjacent private owner to sell easements stands to make all the money, this could open the floodgates, per se.

That's interesting to point out. I'll work on coming up with a list, though, like I said in the OP, there will be a fair amount of error in the data. I know it because I have identified locations I know are wrong using the methods I used. I'm also using my old laptop to do this, and just selecting 13,000 parcels takes a few minutes of cranking. I'll have to tackle it on a weekend when I have time. I was kind of hoping a better GIS Analyst than myself with better tech would create a better list.

Here's a map I created a year or so ago using the methodology in the first three steps of all the theoretically inaccessible public lands in the State - I came up with a total of 1.6 million acres, the majority of which is State Trust land. The Center for Western Priorities ran their own analysis and came up with 1.9 million acres. I would trust their results more. They put out an excellent report on their findings. They claimed that 724,000 acres were inaccessible because of corner crossing's legal gray area.

 

[Deleted member 28227]

That's interesting to point out. I'll work on coming up with a list, though, like I said in the OP, there will be a fair amount of error in the data. I know it because I have identified locations I know are wrong using the methods I used. I'm also using my old laptop to do this, and just selecting 13,000 parcels takes a few minutes of cranking. I'll have to tackle it on a weekend when I have time. I was kind of hoping a better GIS Analyst than myself with better tech would create a better list.

Here's a map I created a year or so ago using the methodology in the first three steps of all the theoretically inaccessible public lands in the State - I came up with a total of 1.6 million acres, the majority of which is State Trust land. The Center for Western Priorities ran their own analysis and came up with 1.9 million acres. I would trust their results more. They put out an excellent report on their findings. They claimed that 724,000 acres were inaccessible because of corner crossing's legal gray area.

I can run a script or model for you if you need the horse power. What dataset were you using for roads, I would imagine to get accurate results you would need to merge all the various counties maintained road layers, but I'm not sure if many of the western MT counties even have GIS departments.

 

[Nameless Range]

The Montana State Library has a dataset called Framework Roads that the basemap service center creates and maintains and that is what I used. There is an attribute for each row in that dataset designating a road public or private. I queried out the private. I used a Major Rivers dataset I created from the NHD for the navigable rivers piece. The primary purpose of that dataset was cartographic, and is not based on any real analysis of navigability. I haven't scripted this out, just ran it step by step. I should though.

 

[Deleted member 28227]

Assuming you just used the PLSS data for surface ownership, I would think you would need to cull out any isolated pieces of land currently in block management as those are accessible... not sure if you would do this for both Type 1 and Type 2 or just Type 1?