Landowner Closes A Public Road: What Next

[JLS]

Oh man, I made it sound like he did something. I just talked with him after my ticket about what to expect at trial. It would have been helpful to know that stuff in advance, but I shouldn’t have dropped his name in public. So don’t call him!

LOL. No worries. I thought he went rogue and tore out a gate or something.

 

[Nameless Range]

Please go to Montana Public Land Water Access Association (PLWA) website and submit message explaining the closure to public lands. PLWA phone # is 406-690-0960
You can do this and still be a hero, but it is silly to go solo when PLWA is such a great resource.

I’m not interested in doing this solo nor am I interested in being a “hero”. PLWA is a great organization and numerous people have told me they should be made aware of this, and they likely will be.

Though I have my own perspective and believe this is a public access road full-stop, I am open minded to both sides of the story. I would like to have more information and a better picture of the history of this road, and the relationship between the landowners and the forest service before I get anyone fired up. There’s a bit more research to do, and a couple more people I’d like to talk to.

 

[Straight Arrow]

I’m not interested in doing this solo nor am I interested in being a “hero”. PLWA is a great organization and numerous people have told me they should be made aware of this, and they likely will be.

Though I have my own perspective and believe this is a public access road full-stop, I am open minded to both sides of the story. I would like to have more information and a better picture of the history of this road, and the relationship between the landowners and the forest service before I get anyone fired up. There’s a bit more research to do, and a couple more people I’d like to talk to.

Roger, Wait Out.

 

[NYyotekiller]

The more I dig in the more I talk to people, I do not think that the forest service has a recorded easement.

Have you been to the county Clerk‘s Office or Recorder to search for the easement and if one was recorded? That would solve all your problems if you could get your hands on one. It’s also an option to hire a local abstract or title insurance company to search for one for a small fee. If you aren’t familiar with the record searching process at the clerk’s office then this might be a good idea. I’ve spent more time than I care to remember searching for deeds and records in Clerk’s Offices in my 20 years as a Professional Land Surveyor and I still employ some local Abstract and Title companies to do searches for me when I am at a dead end. Most of the time they find what I needed and I should have called them in the first place. They are very good what they do or else they won’t be around long.

It is also possible that there is an unrecorded easement somewhere as well but that will more than likely require lawyers and a Judge to get involved before everything is settled. Hopefully you don’t need to go that route though.

 

[Dakotakid]

The problem with this situation is that they gated the road so a prescriptive easement is not likely. One of the requirements of a prescriptive easement/adverse possession is that it needs to be continuous and uninterrupted. By them simply gating the road puts a kibosh to an easement by prescription I’m afraid.

I‘m not familiar with Montana law but this is the case here in New York.

Also, Some states say that an owner can declare a use to be permissive, such as by posting signs giving permission, and thereby avoid creation of a prescriptive easement.

A reverse prescription requires 5 years, same as prescription.

 

[matt0550]

Check with LE with jurisdiction and ask how they would respond to a complaint of the lock being cut. I may or may not have used angle grinder myself in a similar situation

Just some food for thought

I like this idea as it sheds immediate light on a brewing situation - puts it on paper so to speak. Particularly if there are several individuals all inquiring about the same problem. The LE will have to decide whether or not to act knowing that failure to get to the bottom of it could allow for confrontation or "destruction of property" such as cutting the lock, pulling down the gate etc.
Nobody likes to be the one who didn't do their due diligence in investigating to the most logical conclusion.

 

[lpcoutdoors]

Closing a public road takes balls.

Bringing an angle grinder and re-opening said public road takes balls too. I know what I would do.

These stories always remind me of back when I was a kid in the CB days listening to a conversation between a rancher and a hired hand about a lock that wasn't supposed to be on a gate. The rancher kept telling the hand the combination of the lock was "3006" and the hand just wasn't getting it. Finally someone else listening in jumped in and said to the hand "he's telling you without just saying it to shoot the f....in' lock off". That was the end of the conversation.

 

[VikingsGuy]

Once it is eventually ordered down, it will come down.

Varies by state, but in some cases "timely objection" is a consideration in the prescriptive easement/adverse possession analysis for both sides of the question.

 

[gouch]

When the FS says they are "Working to resolve the issue." that is probably true. BUT If it is like every forest I've seen there is probably one or two people In the Lands department and they deal with all right of way and easement issues as well as all special use permits, which there are probably a several hundred active and many more being applied for. They also deal with all trespasses and encroachments and "other duties as assigned." They are probably only fully budgeted for six to nine months out of the year. One gate on one road may not be on the top of their list of issues to get resolved.

 

[ImBillT]

In all seriousness - the inverse strategy if you are a jackwagon landowner is just to gate ALL the public roads, hope no one challenges it, and then watch the clock? The road becomes yours after a certain period of time has passed? These are bizarre laws but thanks for making me aware of them. The pandemic is a OIL opportunity to squat on some public access and make it your own little slice of heaven. Who knew?

There are some good reasons for adverse possession laws, but like all laws, they can be abused. I doubt that any adverse possession laws were written intending to allow intentional theft of property, and that could certainly be done fairly easily on vast tracts of public land in e backcountry.

 

[gouch]

There are some good reasons for adverse possession laws, but like all laws, they can be abused. I doubt that any adverse possession laws were written intending to allow intentional theft of property, and that could certainly be done fairly easily on vast tracts of public land in e backcountry.

The law doesn't allow for adverse possession of federal land. I had to deal with several trespass issues while with the Forest Service and adverse possession always seemed to be the first claim of the trespasser. It never worked.

 

[Irrelevant]

The law doesn't allow for adverse possession of federal land. I had to deal with several trespass issues while with the Forest Service and adverse possession always seemed to be the first claim of the trespasser. It never worked.

Nor does it work on publicly owned easements

 

[Wildabeest]

I’d suggest you also do some case law research on how the MT courts have interpreted the “adverse” or “hostile” requirements for prescriptive easement. I’m dealing with an easement dispute on one of my properties in UT right now. In UT, the case law supports that “adverse” can be assumed, and as such the burden of proof shifts to the defendant to prove otherwise. That proof would need to be some type of formalized agreement showing permission was formally granted. Which is why I suspect the property owner in your case is now asking people to call for permission because it will establish that.

Irregardless, I think USFS is the only party with standing to bring a lawsuit here. Just because you’ve used someone’s property to get from one piece of property you don’t own to another piece of property you don’t own does not give you standing.

I like the idea of engaging your local LE. They may tell you “it’s a private matter between private individuals” and not want to get involved (which is what I was told), but it would still help to make them aware. They might have insights into other people making similar claims. Not to mention that it would give you a chance to. Are your case to them before the landowner does. They would probably appreciate you being proactive about it.

I didn’t see it mentioned here, but I assume you’ve checked the county plat maps to see if the road is on there? In UT, that’s really the litmus test for whether a road is “public”. The fallback is then recorded easements, but easements have issues with clearly defining who the “grantee” is. Unless it specifically says that it’s “the public”, then it’s likely restricted to a named grantee. If there’s no formal plat recording or easement recorded, then the only way to make this officially a “public access” is for USFS to file a lawsuit or negotiate such with the landowner and then record the easement as a result of that process. LE is generally not going to attempt to enforce a prescriptive easement. They’ll only enforce it after you’ve sued over it and won - which would result in an official court judgment and, hopefully an official easement being recorded.

 

[diamond hitch]

Sounds similar to Modesty creek out of Anaconda. While I was working I had a pile of people in my office gathering data to prove the road a 2477 road to guarantee easement since it was in existence at statehood. As I understand the courts upheld the easement.

The road was opened briefly followed by the owner moving the gate and then closing the road again. Back to court? Another example that out-of-staters don't share at all. You really hate to see these ranches sell.

 

[RobG]

I’d suggest you also do some case law research on how the MT courts have interpreted the “adverse” or “hostile” requirements for prescriptive easement. I’m dealing with an easement dispute on one of my properties in UT right now. In UT, the case law supports that “adverse” can be assumed, and as such the burden of proof shifts to the defendant to prove otherwise. That proof would need to be some type of formalized agreement showing permission was formally granted. Which is why I suspect the property owner in your case is now asking people to call for permission because it will establish that.

Irregardless, I think USFS is the only party with standing to bring a lawsuit here. Just because you’ve used someone’s property to get from one piece of property you don’t own to another piece of property you don’t own does not give you standing.

I like the idea of engaging your local LE. They may tell you “it’s a private matter between private individuals” and not want to get involved (which is what I was told), but it would still help to make them aware. They might have insights into other people making similar claims. Not to mention that it would give you a chance to. Are your case to them before the landowner does. They would probably appreciate you being proactive about it.

I didn’t see it mentioned here, but I assume you’ve checked the county plat maps to see if the road is on there? In UT, that’s really the litmus test for whether a road is “public”. The fallback is then recorded easements, but easements have issues with clearly defining who the “grantee” is. Unless it specifically says that it’s “the public”, then it’s likely restricted to a named grantee. If there’s no formal plat recording or easement recorded, then the only way to make this officially a “public access” is for USFS to file a lawsuit or negotiate such with the landowner and then record the easement as a result of that process. LE is generally not going to attempt to enforce a prescriptive easement. They’ll only enforce it after you’ve sued over it and won - which would result in an official court judgment and, hopefully an official easement being recorded.

Maybe this is a Utah thing as that it similar to what a lawyer working on Utah stream access told me. She said a citizen must sustain "injury" to have standing, meaning you have suffered a loss of some sort. However, getting a ticket constitutes "injury" which gives you standing to sue. Regardless, at least in Montana, PLWA told me being shut out is sufficient to give them standing.

 

[Hunting Wife]

This thread reminds me it’s about time to make another donation to PLWA.

 

[RobG]

This thread reminds me it’s about time to make another donation to PLWA.

Stimulus check.

 

[BrentD]

These stories always remind me of back when I was a kid in the CB days listening to a conversation between a rancher and a hired hand about a lock that wasn't supposed to be on a gate. The rancher kept telling the hand the combination of the lock was "3006" and the hand just wasn't getting it. Finally someone else listening in jumped in and said to the hand "he's telling you without just saying it to shoot the f....in' lock off". That was the end of the conversation.

I would have been as confused as the cowhand. 'round here, gate combos ARE cartridges, 3-0-0-6, 4-5-7-0, 3-8-5-5 and so on.

 

[lpcoutdoors]

I would have been as confused as the cowhand. 'round here, gate combos ARE cartridges, 3-0-0-6, 4-5-7-0, 3-8-5-5 and so on.

Ha, never thought of that! That is a good way to come up with combo's.