Corner Crossing thoughts part 2, question

[James Riley]

James - I'll give you an example. There are trails around the Crazy Mountains that have been used for more than 100 years. They are shown on current forest service maps. Nonetheless, landowners are claiming the public has given up any easements to them because the public hasn't been using them (something very difficult to prove either way). They have posted the trails. Some deny access altogether, others require you to sign in. The forest service claims they are public, but they don't have the budget to prevent the landowner from posting it or gathering written permission to use it or bring it to court. Access groups like PLWA don't have the resources to fight more than a couple battles at a time. So they remain unsettled. That actually seems to be the norm around here.

Compounding the problem is that with contested access the public are even less likely to use them. The trails become hard to find, which further bolsters the landowner's claim that it isn't being used by the public.

This is an interesting topic that I've just started learning about. Not enough people are doing much about it and perhaps I can find enough time to help correct the situation. This might be a case where the Forest Service needs to be sued to get them to do their job of clearly asserting the right of the public to use this trail.

"Use it or lose it" should not be a valid legal argument, but neither should "possession is 9/10ths of the law". The fact is, if you think you are on sound legal ground and want to do something, but fail to exercise your rights, then it doesn't really matter if the land owner has created enough evidence for some future date: The only thing that matters is that your rights were denied, today, by a bully. You can exercise your rights, or fight for the rights of future generations, or you can stand down and let the bully win.

I've heard about similar situations to yours, in Idaho and Utah, when it comes to roads in Wilderness. The public claims that the road was in use since long before Christ was a Corporal. I don't know how those situations pan out, but I'm sure statutes get involved, burdens of proof, etc. Here, in your case, you have the opposite situation. You've got the government on your side. If it's your right, use it or (maybe) lose it.

Here's what I would do. I'd go where I want, legally.

On the other had, I'm not a people person, but if I was, I'd get together with like-minded people and file the easement with the county recorder's office. Simple, cheap. Preserves the record of your claim and let's subsequent purchasers know there is a claim for easement on that land they are thinking about buying. If that can't be recorded or the recorder won't record it, then publish notice, to the public and to the land owner. This preserves your position against changes (over-grown, etc.). Make sure to state that your failure to exercise your rights to access is based upon actions of the land owner (physical threat). If he openly denies physical threat, then use the easement. Let him press charges and prove his case in court.

In the end though, if you have evidence of ancient use, then you are good to go. If you don't, then your predecessor's failure to do what you should be doing has burned you. And your children and their children.

But the answer is simple: If you have the right, use it.

 

[Oak]

I didn't read all the replies, so mine might be redundant. I asked a CPW officer about this very circumstance last year, with the parcel in question within viewing distance as I asked. She said that the public land must reach the road surface, and that you cannot use the road right-of-way to access public land. Using my limited accuracy Garmin and onXmaps chip, it appeared that the BLM land did not reach the road, but did reach the marked fenceline along the road. I.e., it was public land before reaching the fence, which was 20 feet at most from the road.

 

[James Riley]

I didn't read all the replies, so mine might be redundant. I asked a CPW officer about this very circumstance last year, with the parcel in question within viewing distance as I asked. She said that the public land must reach the road surface, and that you cannot use the road right-of-way to access public land. Using my limited accuracy Garmin and onXmaps chip, it appeared that the BLM land did not reach the road, but did reach the marked fenceline along the road. I.e., it was public land before reaching the fence, which was 20 feet at most from the road.

Interesting. If that is true then there must be something in the recorded right of way that limits use of the easement. Otherwise you would not be allowed to walk down the fence line inside the right of way. You must stay on the road. Sounds weak to me, but it would be in the recorded easement (i.e. law).

 

[RobG]

"Use it or lose it" should not be a valid legal argument, but neither should "possession is 9/10ths of the law". The fact is, if you think you are on sound legal ground and want to do something, but fail to exercise your rights, then it doesn't really matter if the land owner has created enough evidence for some future date: The only thing that matters is that your rights were denied, today, by a bully. You can exercise your rights, or fight for the rights of future generations, or you can stand down and let the bully win.

I've heard about similar situations to yours, in Idaho and Utah, when it comes to roads in Wilderness. The public claims that the road was in use since long before Christ was a Corporal. I don't know how those situations pan out, but I'm sure statutes get involved, burdens of proof, etc. Here, in your case, you have the opposite situation. You've got the government on your side. If it's your right, use it or (maybe) lose it.

Here's what I would do. I'd go where I want, legally.

On the other had, I'm not a people person, but if I was, I'd get together with like-minded people and file the easement with the county recorder's office. Simple, cheap. Preserves the record of your claim and let's subsequent purchasers know there is a claim for easement on that land they are thinking about buying. If that can't be recorded or the recorder won't record it, then publish notice, to the public and to the land owner. This preserves your position against changes (over-grown, etc.). Make sure to state that your failure to exercise your rights to access is based upon actions of the land owner (physical threat). If he openly denies physical threat, then use the easement. Let him press charges and prove his case in court.

In the end though, if you have evidence of ancient use, then you are good to go. If you don't, then your predecessor's failure to do what you should be doing has burned you. And your children and their children.

But the answer is simple: If you have the right, use it.

One problem is that the consequences of blocking public access are pretty small, and many of these guys are billionaires so they don't care. It has to go to court which is very expensive for PLWA (or whoever) to get a positive judgement and it takes years. Then the billionaire attacks the subject from a different angle. The bridge on the Ruby on Cox-Kennedy land is a notorious example. It is widely believed that Cox-Kennedy is now trying to buy the supreme court to finally get a favorable settlement to weaken stream access. The stream access issue has a lot of visibility, but people don't hear as much about the roads/trails being closed down.

I can think of one road that comes within a 10' of some good public hunting land. I'll have to ask the FS if I can actually go there, and never tell anyone else that you can



I'm foggy on this, but last session PLWA tried to get a bill passed that would make the penalty for illegally closing the land something like $500/day. It went down in flames.

 

[2ski]

On the 1", I read a case about shooting over private property. It is trespass. But you could, in theory, shoot through that 1". But you couldn't get in to get your game, or get it out.

I'm glad you mentioned that. A few weeks ago, when I was teaching hunter's safety, my 12 year old class and I were talking about corner crossing. They asked me about shooting over the corner and shooting over private property from public land into public land. I wasn't sure if this had been addressed in a law or not.

 

[James Riley]

One problem is that the consequences of blocking public access are pretty small, and many of these guys are billionaires so they don't care. It has to go to court which is very expensive for PLWA (or whoever) to get a positive judgement and it takes years.

Rather than be the plaintiff, be the defendant. Exercise your rights and make them sue you. Defend all the way to the top. It's cheaper to defend than to prosecute and the burden of proof is on them.

Again, I'm not a people person but if I was, I'd organize like those Bundy-types in Utah, get a metric shit ton of people, call the press, the land owner, the cops, the DA and the AG, tell them where and when and what, and then go march right up your easement. And if they call out the private security and try to physically prevent access, out gun them. Let the cops be forced into a civil stand-by. Make dirt bag get an injunction and prove his case. I don't believe the cops can place the burden of proof on you to exercise your rights. They should call it a civil matter and stay out of it. This is, of course, assuming you are right, that you have a right and an easement.

But this is all off of the corner crossing issue which has nothing to do with claimed easements across private property. In that case, you still have to have an easement and if you have one, you should record it.

Start nice and give them a choice: You can do this the easy way, or you can do it the hard way.

 

[James Riley]

I'm glad you mentioned that. A few weeks ago, when I was teaching hunter's safety, my 12 year old class and I were talking about corner crossing. They asked me about shooting over the corner and shooting over private property from public land into public land. I wasn't sure if this had been addressed in a law or not.

I can't cite you the case or article off the top of my head, but last time we were talking about corner crossing in another thread a few days ago, I did come across that very issue and as I recall, you cannot shoot across someone's land without their permission. (I suppose you could if the bullet remained above whatever elevation the FAA (or law) has deemed beyond private ownership. I think I read that was somewhere between 84 feet and 500 feet). The 84 came from a case and the 500 came, I think, from the FAA.

 

[RobG]

We went on a little bit of a tangent, but it applied to when a historically used trail or road led to public land but the landowner says you can't access. Usually at a corner there is a road that goes to the gate to the public so it would apply to that road. In that case it seems the best thing to due is to call the agency if the landowner is trying to block access.

Now if it isn't posted I believe you have no obligation to ask the owner if you can cross his land to access public. At least that is how I understand it in Montana. However, you definitely need permission to HUNT private land even if it isn't posted. Here is the law: http://codes.lp.findlaw.com/mtcode/45/6/2/45-6-201

Related to the Crazys, the landowner (Langhus) who is trying to block the public from using the historic trail across his property (between big timber and sweetgrass creeks) asked the sheriff to ticket the CGNF district ranger Alex Sienkiewicz for trespass this summer. The sheriff did nothing. When I talked with Alex on Tuesday he said it would be a good idea to stage some public hikes through these areas. You could see the gears turning in my friend's head and he is a BHA board member so look for it next summer.

He has a pretty impressive background for a lowly ranger , MPA, JD, PhD. https://www.linkedin.com/in/alexsienkiewicz

 

[1_pointer]

I wouldn't care too much what the USFS said. It's a state law that makes it illegal and if it's posted illegally I'll take it down and S on it. If I'm prosecuted, all the better. I will win. If the landowner say he doesn't recognize the public's right to access I will say "Charge me with trespassing and/or criminal mischief and I'll see you in court. I don't recognize your right to sign out public property."

If it's on BLM land and the person hanging the sign is a grazing permittee, it gets a bit deeper for them as it's against federal law. 43CFR4140.1(b)(7) They could lose their grazing permit, fine up to $500, and up to 12mos in jail.

 

[James Riley]

We went on a little bit of a tangent, but it applied to when a historically used trail or road led to public land but the landowner says you can't access. Usually at a corner there is a road that goes to the gate to the public so it would apply to that road. In that case it seems the best thing to due is to call the agency if the landowner is trying to block access.

Now if it isn't posted I believe you have no obligation to ask the owner if you can cross his land to access public. At least that is how I understand it in Montana. However, you definitely need permission to HUNT private land even if it isn't posted. Here is the law: http://codes.lp.findlaw.com/mtcode/45/6/2/45-6-201

Related to the Crazys, the landowner (Langhus) who is trying to block the public from using the historic trail across his property (between big timber and sweetgrass creeks) asked the sheriff to ticket the CGNF district ranger Alex Sienkiewicz for trespass this summer. The sheriff did nothing. When I talked with Alex on Tuesday he said it would be a good idea to stage some public hikes through these areas. He has a pretty impressive background for a lowly ranger , MPA, JD, PhD. https://www.linkedin.com/in/alexsienkiewicz

Regarding historic use, if the easement is not recorded, I think the burden of proof would be upon the public, not the land owner. As you said, that could be hard to prove and gets harder as non-use continues and the years go by. Usually the county records control. If you were a judge or a jury, you'd probably rely on that first, and if someone wanted to allege an easement not recorded, they'd have to pony up some evidence unrelated to trespass. Otherwise the owner could just say that historical use was trespassing. I'd think the use would have to go back before the current owner so it could be proved he "took" knowing the public was traipsing across the property before he bought it. Otherwise, he has a right to rely upon the county records. Title Insurance Companies would be on the hook too, if the policy holder came back on them for failure to disclose the easement. Although many policies have exclusions for such S.

I don't know about Montana but I pretty sure in Colorado the burden of know where you are is on the public and there is no obligation on the property owner to post or fence. It's up to the public to figure it out where they are, who owns what, and ask permission.

I read a law review article the other day (Duke?) and posted the link on this board. I could be confusing articles, but I think it said that in most states, common law held that land that is not posted can be hunted upon without permission, but the right to "trespass" is limited to hunting (and fishing?) and no other. So it seems to be opposite of Montana where, you say, you can access but not hunt.

 

[Sytes]

Recent analysis by the Colorado-based Center for Western Priorities shows that more than 4 million acres of public land in the West is inaccessible to the public. Topping the list is Montana, with nearly 1.96 million acres, followed by Wyoming (758,000 acres) and Colorado (541,000 acres).

In many areas, a quilt of public and private ownership results in state and federal tracts stranded within private holdings. In some cases, public roads that run through private land to public property are closed off, fenced, or illegally marked “Private.”

Montana Senator Jon Tester is one of several members of Congress who have introduced bills, so far with no success, that would direct land managers to identify public property without public access and allocate funds to create permanent entry.

To read a copy of the report, “Landlocked: Measuring Public Land Access in the West,” visit westernpriorities.org.
Public land in Montana inaccessible because the public can’t cross corners 724,000 acres
Fully land-locked by private lands 1,231,000 acres
Total amount inaccessible and off-limits 1,955,000 acres

Staggering numbers for Montana! :W:
http://fwp.mt.gov/mtoutdoors/HTML/articles/2014/Accessingpubliclands.htm

Now if it isn't posted I believe you have no obligation to ask the owner if you can cross his land to access public. At least that is how I understand it in Montana. However, you definitely need permission to HUNT private land even if it isn't posted. Here is the law: http://codes.lp.findlaw.com/mtcode/45/6/2/45-6-201

I never knew this... WOW!

Privilege to enter or remain upon land is extended either by the explicit permission of the landowner or other authorized person or by the failure of the landowner or other authorized person to post notice denying entry onto private land. - See more at: http://codes.lp.findlaw.com/mtcode/45/6/2/45-6-201#sthash.Gkjnl3ZD.dpuf

 

[RobG]

I never knew this... WOW!

Just make sure you understand what proper posting is and you can't hunt on the private. It's best to ask the landowner if for no other reason than you might wind up with a lot more hunting opportunities than you expected. You used to be able to hunt upland birds on land that wasn't posted but a law was passed a dozen or more years ago preventing that.

 

[sbhooper]

Regarding historic use, if the easement is not recorded, I think the burden of proof would be upon the public, not the land owner. As you said, that could be hard to prove and gets harder as non-use continues and the years go by. Usually the county records control. If you were a judge or a jury, you'd probably rely on that first, and if someone wanted to allege an easement not recorded, they'd have to pony up some evidence unrelated to trespass. Otherwise the owner could just say that historical use was trespassing. I'd think the use would have to go back before the current owner so it could be proved he "took" knowing the public was traipsing across the property before he bought it. Otherwise, he has a right to rely upon the county records. Title Insurance Companies would be on the hook too, if the policy holder came back on them for failure to disclose the easement. Although many policies have exclusions for such S.

I don't know about Montana but I pretty sure in Colorado the burden of know where you are is on the public and there is no obligation on the property owner to post or fence. It's up to the public to figure it out where they are, who owns what, and ask permission.

I read a law review article the other day (Duke?) and posted the link on this board. I could be confusing articles, but I think it said that in most states, common law held that land that is not posted can be hunted upon without permission, but the right to "trespass" is limited to hunting (and fishing?) and no other. So it seems to be opposite of Montana where, you say, you can access but not hunt.

An area that I used to hunt north of Hayden, Colorado had an outfitter from Georgia that owned a section in the middle of all public. He would never post the land and had no fence around it, but took great pride in running you off. I actually was there enough to where I got along pretty good with the guy, but I never trespassed knowingly. It would have been real easy for that dick to post the land, too.

 

[Sytes]

Just make sure you understand what proper posting is and you can't hunt on the private. It's best to ask the landowner if for no other reason than you might wind up with a lot more hunting opportunities than you expected. You used to be able to hunt upland birds on land that wasn't posted but a law was passed a dozen or more years ago preventing that.

I have no interest testing any of this out on another's land... though I do plan to mark the entry to my Wilk's empire building 12 acre property accordingly.

For those interested in corner crossing - based on the info - the truth is in the detailed pudding... Nothing states they must mark the boundary perimeter or corners, unless along a Right of Access road not bordered by fencing.

 

[James Riley]

It would have been real easy for that dick to post the land, too.

Sometimes they do post their land and then some dick tears the signs down. There are dicks all over the damn place. We try to pass laws to address the dicks but they keep popping up everywhere, on all sides of every issue.

 

[sbhooper]

I just got an email from the DA in Carbon County Wyoming and he made it clear that he would prosecute for corner crossing. One look at his picture on the web site and I knew where he would stand-politician bought and paid for, no doubt. It would be interesting to sit in on a trial, where he was trying to prosecute someone for this.

 

[Sytes]

I am sure this has been reviewed when considering the legal & illegal aspects of corner crossing though maybe someone here knows why this is unable to support a person's intent to go from our (public) land to our (public) land.

43 CFR 9239.2-1 - Enclosures of public lands in specified cases declared unlawful.

§ 9239.2-1 Enclosures of public lands in specified cases declared unlawful.

(a) Section 1 of the Act of February 25, 1885 (23 Stat. 321; 43 U.S.C. 1061), declares any enclosure of public lands made or maintained by any party, association, or corporation who “had no claim or color of title made or acquired in good faith, or an asserted right thereto, by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such enclosure was or shall be made” to be unlawful and prohibits the maintenance of erection thereof.

 

[James Riley]

I am sure this has been reviewed when considering the legal & illegal aspects of corner crossing though maybe someone here knows why this is unable to support a person's intent to go from our (public) land to our (public) land.

1. There is no problem supporting a person's intent to go from public to public. All they have to do is state their intent. The issue is, they can't do it without trespassing.
2. All the enclosures we are discussing here do not fall under any of the specified cases. In other words, the cited section is directed at people who act like they are homesteading when they are not.