Probably a stupid question; Cornerhopping literally!

[James Riley]

I'm not sure your point on statement one. The states have been granted ownership of navigable waterways to be held in trust for the public. The law review may be 32 years old, but I've seen nothing since then that has overturned the numerous federal court decisions declaring that states own the navigable waterways, including the streambeds, and those are to be held in trust for public use.

Just because Colorado has gone contrary to what federal law/courts say they should do doesn't mean that's the way it should be.

The western states were granted ownership under the equal footing (with eastern states) doctrine; just like the school trust and land grant lands can be dealt with by state statute/regulation in the public interest, as they see fit, including sale or recognition of private ownership rights, so too the state can acknowledge private ownership of the bed and banks of the river while retaining ownership of the water. On that point, the states have their own water law too, which can allow a river to be dried up, much like the lower Arkansas is in summer. CA, ID, MT have chosen one route; CO another, and their way is NOT contrary to federal law. Just like ID leases grazing rights on school trust lands but the leased lands are otherwise open to the public for hunting, fishing etc, while CO grants the grazing lease AND excludes the public from entry when those lands are so leased. "Public Trust" in this case is delegated to the states. Your own law review article does not argue that what CO has done is contrary to federal law or legal decisions. It merely notes a trend in some states like CA toward a recreation right which can be supported in federal law by a state that wants to make it. In other words, CA is in good stead with federal law if it wants to move in the direction it is moving. The question of what "should be" is up to the States. I have heard of a federal reserved water right for fish and wildlife and trees, but that is a water right, not a bed or banks land ownership or easement right.

Reading the "Conclusion" of your law review article pretty much sums it up.

 

[Blitzkrieg]

Corner crossing

With the good quality of GPS's being able to pinpointing the "corner" I've been tempted to "hop" over the corner if there is no legal marker. I have used my GPS to locate many areas where the "fence corner" is not very close to a legal marker or where my GPS locates the corner. I've found many times ranchers put the fence where it was easy. I was told by the wardens in MT to trust the GPS. ( yes it is still off a few yards ) But, I'm tempted to hop over the location my GPS says the corner is if I cannot find a legal marker that corresponds exactly to a legal marker! Who says the fence is correct? I trust technology over some rancher who put up the fence decades ago!
My only I intention is to hunt on public lands which is not illegal. And if I "hop" the corner I am in the air as both feet are off the ground. If you look up running there is a "flight phase" defined by scientists when both feet are off the ground at the same time. This is what differs running from walking. If ticketed, And if the person did in fact "hop" the corner I believe this would have to be thrown out. I brought up this exact senerio when MT was fighting over this a few years ago... I got a personal phone call from one of my congressmen which I believe was done to silence me..... It didn't work!

 

[----]

With the good quality of GPS pinpointing the "corner" I've been tempted to "hop" over the area where my GPS locates the corner if there is not a "corner fence crossing" marked by a legal marker. I've found many times ranchers put the fence where it was easy but not very close to the corner located by my GPS. My only I tention is to hunt on public lands and do nothing illegal and if I "hop" the corner I am I the air as both feet are off the ground. If you look up running there is a "flight phase" refined when both feet are off the ground at the same time. Which is differs running from walking. If ticketed I believe this would be thrown out. I brought up this exact senerio when MT was fighting this a few years ago... I got a personal phone call from one of my congressmen which I believe was done as to silence me..... It didn't work!

Your GPS and the underlying software are nowhere near accurate enough to do that. At best you're looking at +/- 10-15 ft. Without a surveyed pin to step over there is no way to know you're not trespassing.

 

[Blitzkrieg]

I understand commercial GPS are not exact, but who says the rancher decades ago is more accurate than my GPS? If there is no legal marker then I trust the technology in my hand. I have found fences 40 yards off in MT ( lots of land to fence). And there is no way the GPS is off that far when I keep averaging the signal. I challenging the imaginary airspace BS by proposing "hopping" ONLY IF there is NO legal marker that identifies that corner. OR if my GPS tells me the fence is off the true corner. AGAIN there is a scientifically defined flight phase in running defined as when both feet are off the ground at the same time! So if I hop I am in flight if only for a millisecond.

 

[James Riley]

Your GPS and the underlying software are nowhere near accurate enough to do that. At best you're looking at +/- 10-15 ft. Without a surveyed pin to step over there is no way to know you're not trespassing.

Agreed. The best they can do are help locate the pin and even then, I think the adjacent land owner owns that air space above his property up to a certain elevation above ground level. I don't know what that elevation is but the FAA would know. But you can't legally cantilever your structure over your neighbors property just because it doesn't touch his land. Likewise, if you jump, you are trespassing, even if airborne.

If the States really cared about this, they could condemn access and pay fair market value for a five foot wide access across corners. I doubt the compensation would be much. They could also assess the value of the private property to include sole access to and use of the public section, increasing property taxes to reflect that. The amount could be offset in return for an easement and if not accepted, used as a valuation for condemnation.

Just rambling out loud.

 

[Straight Arrow]

AGAIN there is a scientifically defined flight phase in running defined as when both feet are off the ground at the same time! So if I hop I am in flight if only for a millisecond.

Aside from Riley's elevation point which is valid, the whole intent is to hunt the public section you have "hopped" to, so are you really big enough, strong enough, fit enough to accomplish that same millisecond hop with a quarter of an elk on your back? Your hypothetical points are old hat and really not that helpful in resolving the issue.

 

[MHMT]

No it is not, because you are in the private landowners "airspace". your only option would be to get permission from the landowners to access the property.

So how high do you have to be before you're not invading their airspace?

https://www.youtube.com/watch?v=TQvkVJopQIg#t=372

High enough?

 

[Blitzkrieg]

A previous writer hit the nail on the head... INTENTION is not to break the law but to hunt legally. If ticketed for corner crossing without a legal marker...I would like the FWP to legally qualify that EVERY fence is EXACTLY where it should be to within the thickness of their corner post. Even if my GPS is off I have still done everything on my power to hunt on lands I PAY TAXES ON AND IN MT HAVE TO BUY AN EXTRA PERMIT TO USE... If I hop where my GPS locates the corner (without a legal marker) anyone can see I'm doing the best of my ability to stay within their stupid corner crossing definition....

 

[Straight Arrow]

Cool, but silly. So again, can you really soar back across with an elk strapped to your snowboard?

 

[Blitzkrieg]

I asked the MT FWP how high and got no answer!!!! Also what would I do IF successful in hunting. Easy I just toss the backpack underhand with my boned out quary over the corner. All it has to be is in the air as I again I asked specifically how high and eastern MT wardens said they did not have an answer.

 

[James Riley]

The real property description controls and thus it would not matter where the point is located on the ground, since that point, wherever it is, cannot be crossed without trespassing. As to the determination of airspace, that would come out in court. I don't know about MT but in CO the burden of knowing private property boundaries is upon the person who must avoid them. Fencing and posting is not required. Your intent would not be relevant. It doesn't matter if you intend to speed or intend to not speed on the highway. If you speed, you are in violation of the law. Besides, if you can't build a fourth story porch over your neighbors property, you can't jump it either.

 

[Straight Arrow]

eastern MT wardens said they did not have an answer.

Wardens may not know, but they merely enforce. If it did end up a violation you would be answering to the county attorney who is representing the landowner involved. I'm sorry you missed the long and detailed discussion on this forum during the 2013 Montana legislative session, as many of these hypothetical points were made and discussed, some even with legal analysis.
My point is, rather than trying to "game" the system and the problem, it will likely be more productive to resolve it through legislative process involving all stakeholders.

 

[BuzzH]

The airspace issue is a red herring...a ploy used by the anti-access crowd used as "law" when one flat-assed doesn't exist. Other than, in most all cases, you'll have a hard time using that "air space" directy above a section corner. Set-back regulations, etc. are real VS. the BS propaganda used by the anti-access crowd.

Also, a case heard in Albany County not long ago involved the use of a GPS with no documented corner. Judge Castor threw the trespassing ticket out, stating that "the gps was close enough".

Like it or lump it, that's what he decided, and I tend to agree. There should be some onus on the Landowner, if they're so concerned about their "property rights" and "air space" to demonstrate that something was taken from them by a sportsman corner crossing to access public lands.

By using a GPS unit, you have done your due diligence with the best thing available, with the most accurate data you can reasonably use, to avoid trespass. Further, the burden would be on the Landowner to PROVE, that 1. You had intentions of trespassing, and 2. That you actually did.

Unless they can prove that you trespassed, then it flat didn't happen. The odds of them actually proving that in a court are somewhere between slim and none. Exactly why Judge Castor tossed the case he heard in Albany County, and rightfully so.

 

[Blitzkrieg]

Straight Arrow... I agee, but unless the issue is forced to either have all fences exact on all property lines then the landowners and states are sidestepping the issue for their personal gain. If "corner hopping" brought about some kind of resolution then it would be better for all parties. If the imaginary airspace issue would be resolved all this would go away. I was told by the congressman that called me that Montana would not take up the fight because the surpreme court in an eastern state upheld the "airspace" BS long before the pseudodebate a few years ago. Montana went the easy route and threw in the towel without a fight! The Imaginary debate by MT in 2013 was over before it began as MT was not going pay the cost to fight a prior court ruling.
The issue is dead in the MT courts unless sportsmen can sidestep the law and force a true catharsis.

 

[BuzzH]

Get a ballot initiative passed and press the issue...force the courts to make a decision.

IMO, its totally unreasonable with, or without a corner crossing law, to expect fences to be surveyed in and installed on exact corners.

There is precedent set to make fencing about convenience, and again, it makes sense in many cases.

In corner crossing legislation, if it passed, you could easily define the corner as a survey pin, and/or fence corner.

 

[James Riley]

Any legislation authorizing a corner crossing would, in my opinion, constitute a "taking" without just compensation in violation of the 5th (?).

 

[Straight Arrow]

Montana went the easy route and threw in the towel without a fight!

Not true, there were hundreds of sportsmen & women in hunter orange at the Capitol (to include BuzzH) in an effort to force a "blast-out" of committee of a corner crossing bill in the House. It was a hard fought but unsuccessful campaign.
With the current 2015 session political climate, it would be futile. 'Don't know why your congressman was spouting off about a supreme court ruling, when this could be a state issue, not necessarily federal.
Currently with the landowner sway in Montana I won't risk the trespass to hunt some really good spots that would involve corner crossing to access. If the landowner in Montana calls the sheriff who cites me and I then face a fine which would be no more than $500 and/or 6mos jail, but likely much less than that, I don't have the money to appeal and elevate the issue to higher courts for resolution. So far that seems to be the prevailing attitude, as no one has hopped up (pun intended).
Furthermore, I respect private property rights (precedent right or wrong) and continue to advocate for resolution through good legislative process.

 

[BuzzH]

James, post 1 here that Fin made.

http://onyourownadventures.com/hunttalk/showthread.php?t=253801&highlight=corner+crossing+goetz+firm

 

[Straight Arrow]

'Good reference, Buzz. The "taking" issue has proven to be invalid all the way up to the Montana Supreme Court regarding stream access, Montana game farm laws, and recreational access to state owned lands. The precedent appears to be in favor of public interests and access, rather than contrived private property rights which are "stretched" to fit the intent of the Constitution.

 

[James Riley]

'Good reference, Buzz. The "taking" issue has proven to be invalid all the way up to the Montana Supreme Court regarding stream access, Montana game farm laws, and recreational access to state owned lands. The precedent appears to be in favor of public interests and access, rather than contrived private property rights which are "stretched" to fit the intent of the Constitution.

Devil's Advocate. Stream access (and all the water law and navigation issues that go along with it) is not anything like corner crossing. This appears to be a Memorandum penned by a zealous advocate for an interested party. It does not constitute the law, or even an objective recitation of it. Without an opposing party, say the Mountain States Legal Foundation, submitting a response ripping this memorandum apart, and then having the parties appear before a court of competent jurisdiction to decide the matter, the memorandum just provides interesting reading and a start for any attorney who wanted to take the matter up. That would not be me.

I'm not going to go pull all the case law which could be used to stomp this memo but a cursory review would have me note there is a world of difference between letting the state off the Fifth Amendment hook for refusing to prosecute on the one hand, and finding the Fifth does not apply on the other hand. The memo, in substance, wants to find the Fifth Amendment to the U.S. Constitution is nothing more than a nuisance. Oh, that pesky Constitution, always raising it's stupid head to protect the rights of individuals.

There is no legitimate health, safety, welfare or moral interest in allowing hunters to trespass on private property in their effort to access public land. Montana's abundance of natural resources and public land actually cuts against the memorandum and any alleged legitimate health, safety, welfare or moral interest in allowing a denigration of Fifth Amendment rights.

The memorandum turns logic on it's head when claiming private landowners have no legal interest in controlling access to land they do not own. Private land owners can stipulate to that. That is NOT the interest private landowners seek to protect. Rather, they seek to keep the public off of their private land.

Regarding Camfield, a case from 1897, it is irrelevant. The private land owners did not argue that the Unlawful Enclosures Act was unconstitutional under the Fifth Amendment so the issue was never raised. In any event, the court said the Feds had the rights of an ordinary proprietor to maintain its possession, and to prosecute trespassers. This would mean private property owners have those same rights and since the 5th was never argued, the issue of a taking still exists.

Likewise in Bergen. According to the memorandum, the question of a taking was not an issue in the case.

The memorandum notes a case on point, Leo Sheep, finding a taking, but then tries to distinguish that case by noting the proposed (defeated) Montana law which the memorandum was written to support is not taking an affirmative action to allow access but merely allows a refusal to prosecute. No wonder the law was defeated. It basically said the state will decline to enforce the law.

The fundamental mistake in the memorandum is, again, turning logic on it's head. It states: “ . . . the property interest at stake is not the right to exclude; rather it is the ability to control access to land that property owners have no interest in.” That is simply not the case. The property interest at stake is specifically the right to exclude the public from private land. Wouldn't it be nice if we could all just tell everyone what another's private property rights are or what they are thinking?

As to the airspace, they cite noise in public airspace, not private airspace closed to the public.

The memorandum also makes a de minimus argument. Basically saying they only want to trespass a little bit, and gee, if it's only a little bit, then it's not really trespassing. Tell that to the cop enforcing the speed limit. The memo basically says there is no recognized property interest in the corner of your property, that purchase of the property could not have included a valuation based on a lack of people crossing your property, and the character of the government action is de minimus.

In short, if the impact is really de minimus as argued in the memo, then payment for the access should be chump change, right? Then the public could not only walk or jump, they could drive their quads and trucks and everything else across that little corner, opening the land up to all kinds of public use. The Fifth would just say: Pay for it! It ain't much, right? Or is someone afraid to find out just exactly how much that investment was worth when the private property was bought with the Fifth in mind?

Again, the only real way to resolve this is to take it all the way up with the issue on point.