Wyoming Corner Crossing Defense Fund

[Nicoli7153]

I've been stewing on this one all day. There are a million things that could happen, which could depreciate the value of a property. Anyone is allowed to be bummed when they happen. But we're talking about a lawsuit against 4 men, for harming the value of a property by excercising basic rights. If Fred E doesn't think those rights exist and he wants to argue it in court, fine. But, there's something incredibly crass, to me, about using the argument that those basic rights would devalue his property. I mean, plenty of racist people complained that their property values were harmed by people of color moving into their neighborhood. Should we have indulged that argument too? Of course not! It's an extreme version of the same argument, though. I'm finding it difficult to express my thoughts on this legal strategy while also honoring the accepted norms of Hunt Talk speech...

I think it's a feeble attempt to show damage, an essential element in a civil trespass

 

[Dougfirtree]

I think it's a feeble attempt to show damage, an essential element in a civil trespass

I think you're right. Feeble and kind of offensive.

 

[Sytes]

I think it's a feeble attempt to show damage, an essential element in a civil trespass

Feeble from one side of the figurative fence.
I was curious why a federal Judge would refuse to dismiss the suit against the four hunters.

"A Federal judge refused last week to dismiss a civil suit against four corner-crossing hunters, ruling that Elk Mountain Ranch owner Fred Eshelman has a “plausible claim” to bring in his allegations of trespass and damage."

"U.S. District Judge Scott Skavdahl’s July 20 order advanced the court action on Eshelman’s claim that he has a right to exclude others from the airspace above his property."

MSN

2021 Wyoming Statutes​

Title 10 - Aeronautics​

Chapter 4 - Uniform State Law for Aeronautics​

Article 3 - Miscellaneous​

Section 10-4-302 - Ownership of Space.​

The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath subject to the right of flight described in W.S. 10-4-303.

2021 Wyoming Statutes :: Title 10 - Aeronautics :: Chapter 4 - Uniform State Law for Aeronautics :: Article 3 - Miscellaneous :: Section 10-4-302 - Ownership of Space.

Justia Free Databases of US Laws, Codes & Statutes

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2021 Wyoming Statutes​

Title 10 - Aeronautics​

Chapter 4 - Uniform State Law for Aeronautics​

Article 3 - Miscellaneous​

Section 10-4-303 - Low or Dangerous Flight; Landing on Land or Water of Another.​

(a) Flight of aircraft, including unmanned aircraft or vertical takeoff and landing aircraft, over the lands and waters of this state is lawful unless it is:

(i) At such a low altitude as to interfere with the existing use to which the land or water, or the space over the land or water, is put by the owner;

(ii) Conducted as to be imminently dangerous to persons or property lawfully on the land or water; or

(iii) In violation of the air commerce regulations promulgated by the department of transportation of the United States.

(b) The landing of an aircraft, including an unmanned aircraft or vertical takeoff and landing aircraft, on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner, operator or lessee of the aircraft or the airman shall be liable for actual damage caused by the forced landing.

(c) Except as provided in subsection (a) of this section, nothing in this chapter shall be construed to prevent an operator or pilot from operating an aircraft, including an unmanned aircraft or vertical takeoff and landing aircraft, over his own property.

2021 Wyoming Statutes :: Title 10 - Aeronautics :: Chapter 4 - Uniform State Law for Aeronautics :: Article 3 - Miscellaneous :: Section 10-4-303 - Low or Dangerous Flight; Landing on Land or Water of Another.

Justia Free Databases of US Laws, Codes & Statutes

law.justia.com

"Further, Skavdahl refused the hunters’ request to dismiss the civil suit based on the federal Unlawful Inclosures Act of 1885. That law states in part that “all inclosures of any public lands … are declared to be unlawful.”

However, he continues, permitting the use of the UIA for the hunters defense

"The hunters may use that federal law as a defense, Skavdahl wrote. But there’s not enough information on the record — particularly regarding the fencing in the area — to allow him to dismiss Eshelman’s suit based on the 1885 statute, the judge wrote.

“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.

Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads."

side note: I've donated a couple hundred to the first round and will continue to donate, upon another request as I'm of the belief corner crossing should be lawful. I'm also one who likes to learn and while learning from here is constant, it's one sided.

 

[Elkmagnet]

If elk mountain is awarded damages for this then the system truly is broken.
There is so many reasons that the allegations are the fault of Eshelman himself.
He is the one pushing the issue. From start to finish the results will be his doing.

 

[Wildabeest]

With all due respect to Buzz, access (and especially exclusive access) to public lands absolutely affect property values. I own two parcels of land that border otherwise inaccessible public land and that absolutely was a factor in the purchase decision and what I was willing to pay. It’s not corner crossing in my case, but state land sections completely surrounded by private.

The issue here is not whether exclusive access impacts property value (because it absolutely does IMO), but rather whether that exclusive access ever really existed. In the case of corner crossing, I don’t think it did. Buyer took a risk that the courts would support their position, and if they don’t then it’s simply a business risk decision that didn’t go their way vs. a liability to some third party. Arguing that access doesn’t affect value is a losing argument IMO.

 

[grizzly_]

With all due respect to Buzz, access (and especially exclusive access) to public lands absolutely affect property values. I own two parcels of land that border otherwise inaccessible public land and that absolutely was a factor in the purchase decision and what I was willing to pay. It’s not corner crossing in my case, but state land sections completely surrounded by private.

The issue here is not whether exclusive access impacts property value (because it absolutely does IMO), but rather whether that exclusive access ever really existed. In the case of corner crossing, I don’t think it did. Buyer took a risk that the courts would support their position, and if they don’t then it’s simply a business risk decision that didn’t go their way vs. a liability to some third party. Arguing that access doesn’t affect value is a losing argument IMO.

Fair enough. I've got a follow-up hypothetical question for you.

Is a helicopter a legal way to access the landlocked state land to which you're referring? Assuming so, do you think you should be able to successfully sue the hunter or helicopter pilot that legally accesses that land because you feel it devalued your deeded property and you were hoping nobody would ever exercise that right?

 

[BuzzH]

With all due respect to Buzz, access (and especially exclusive access) to public lands absolutely affect property values. I own two parcels of land that border otherwise inaccessible public land and that absolutely was a factor in the purchase decision and what I was willing to pay. It’s not corner crossing in my case, but state land sections completely surrounded by private.

The issue here is not whether exclusive access impacts property value (because it absolutely does IMO), but rather whether that exclusive access ever really existed. In the case of corner crossing, I don’t think it did. Buyer took a risk that the courts would support their position, and if they don’t then it’s simply a business risk decision that didn’t go their way vs. a liability to some third party. Arguing that access doesn’t affect value is a losing argument IMO.

In the case of Wyoming you can land aircraft on state land so you wouldn't have exclusive access. Same with BLM.

I heard the same argument that stream access would force real estate agents into the soup lines. That didn't happen. That won't happen if corner crossing were made legal either.

I mean do you honestly believe Rinehart would drop the price on his ranch listings 30% if corner crossing were legal?

What a joke...of course he won't.

 

[grizzly_]

If elk mountain is awarded damages for this then the system truly is broken.

I've got a new flash that you're probably already aware of... As somebody that was forced to sue the government after being denied a constitutional right to use my land for over five years. Whether I prevail in court next month or am forced to appeal, the system still is broken.

 

[BuzzH]

Feeble from one side of the figurative fence.
I was curious why a federal Judge would refuse to dismiss the suit against the four hunters.

"A Federal judge refused last week to dismiss a civil suit against four corner-crossing hunters, ruling that Elk Mountain Ranch owner Fred Eshelman has a “plausible claim” to bring in his allegations of trespass and damage."

"U.S. District Judge Scott Skavdahl’s July 20 order advanced the court action on Eshelman’s claim that he has a right to exclude others from the airspace above his property."

MSN

2021 Wyoming Statutes​

Title 10 - Aeronautics​

Chapter 4 - Uniform State Law for Aeronautics​

Article 3 - Miscellaneous​

Section 10-4-302 - Ownership of Space.​

The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath subject to the right of flight described in W.S. 10-4-303.

2021 Wyoming Statutes :: Title 10 - Aeronautics :: Chapter 4 - Uniform State Law for Aeronautics :: Article 3 - Miscellaneous :: Section 10-4-302 - Ownership of Space.

Justia Free Databases of US Laws, Codes & Statutes

law.justia.com

2021 Wyoming Statutes​

Title 10 - Aeronautics​

Chapter 4 - Uniform State Law for Aeronautics​

Article 3 - Miscellaneous​

Section 10-4-303 - Low or Dangerous Flight; Landing on Land or Water of Another.​

(a) Flight of aircraft, including unmanned aircraft or vertical takeoff and landing aircraft, over the lands and waters of this state is lawful unless it is:

(i) At such a low altitude as to interfere with the existing use to which the land or water, or the space over the land or water, is put by the owner;

(ii) Conducted as to be imminently dangerous to persons or property lawfully on the land or water; or

(iii) In violation of the air commerce regulations promulgated by the department of transportation of the United States.

(b) The landing of an aircraft, including an unmanned aircraft or vertical takeoff and landing aircraft, on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner, operator or lessee of the aircraft or the airman shall be liable for actual damage caused by the forced landing.

(c) Except as provided in subsection (a) of this section, nothing in this chapter shall be construed to prevent an operator or pilot from operating an aircraft, including an unmanned aircraft or vertical takeoff and landing aircraft, over his own property.

2021 Wyoming Statutes :: Title 10 - Aeronautics :: Chapter 4 - Uniform State Law for Aeronautics :: Article 3 - Miscellaneous :: Section 10-4-303 - Low or Dangerous Flight; Landing on Land or Water of Another.

Justia Free Databases of US Laws, Codes & Statutes

law.justia.com

"Further, Skavdahl refused the hunters’ request to dismiss the civil suit based on the federal Unlawful Inclosures Act of 1885. That law states in part that “all inclosures of any public lands … are declared to be unlawful.”

However, he continues, permitting the use of the UIA for the hunters defense

"The hunters may use that federal law as a defense, Skavdahl wrote. But there’s not enough information on the record — particularly regarding the fencing in the area — to allow him to dismiss Eshelman’s suit based on the 1885 statute, the judge wrote.

“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.

Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads."

side note: I've donated a couple hundred to the first round and will continue to donate, upon another request as I'm of the belief corner crossing should be lawful. I'm also one who likes to learn and while learning from here is constant, it's one sided.

Good post.

Point 1 is that the corner is vested in the several owners...meaning in a checkerboard situation the public is vested in half the ownership. I'm aware of no law that says Eschelmans private property rights trump those of the public.

The other point regarding 10-4-303...there is no penalty in statute if a pilot violates that title 10 language. @JM77 can weigh in on that...

 

[Nicoli7153]

In criminal action if there is no penalty, there is no crime. In civil if there is no damage alleged there is no remedy. I believe it goes back to common law.

What is the case law? Precedent? Very important!

I listened to Randy's podcast with the attorneys, think the hunters are in good hands. They seem well versed in the law. We just need to make sure the hunters get the financial support for a top notch legal team

 

[Sytes]

Is a helicopter a legal way to access the landlocked state land to which you're referring?

Just above your question is your answer.

The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath subject to the right of flight described in W.S. 10-4-303.

Added: I believe, if the frequency of use turned to the frequency of foot traffic, value would reduce in the referenced property.

 

[Nicoli7153]

If elk mountain is awarded damages for this then the system truly is broken.
There is so many reasons that the allegations are the fault of Eshelman himself.
He is the one pushing the issue. From start to finish the results will be his doing.

Maybe an attractive nuisance that he created. Think that has a place in civil law, don't know if it applies to this scenario.

 

[Sytes]

Good post.

Point 1 is that the corner is vested in the several owners...meaning in a checkerboard situation the public is vested in half the ownership. I'm aware of no law that says Eschelmans private property rights trump those of the public.

The other point regarding 10-4-303...there is no penalty in statute if a pilot violates that title 10 language. @JM77 can weigh in on that...

That part, (blue highlight) caught my attention, though I take that to mean, in this checkerboard setting, to the inch, private AND public property corners own the airspace to the point of right of flight.
Example: Elk Mountain Ranch erected barriers that, for sake of debate, exceeded foot traffic ability to overcome.

My hope is the federal 1885 law re: UIA would supercede the State definition of property, in this setting. Though that hope would be based on a single defense. Based on the following, my interest lands on the highlighted portions:

“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.

Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads."

 

[BuzzH]

That part, (blue highlight) caught my attention, though I take that to mean, in this checkerboard setting, to the inch, private AND public property corners own the airspace to the point of right of flight.
Example: Elk Mountain Ranch erected barriers that, for sake of debate, exceeded foot traffic ability to overcome.

My hope is the federal 1885 law re: UIA would supercede the State definition of property, in this setting. Though that hope would be based on a single defense. Based on the following, my interest lands on the highlighted portions:

“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.

Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads."

The UIA has already been used to prove in case law that a fence and other barriers can't impede the use of that corner by the several owners.

That's why the claims made by those saying he could put a 10 foot fence fence or buildings on the corner are wrong.

 

[warmer]

This is turning into another "Montana mule deer management" debate.

 

[Deleted member 18333]

With all due respect to Buzz, access (and especially exclusive access) to public lands absolutely affect property values. I own two parcels of land that border otherwise inaccessible public land and that absolutely was a factor in the purchase decision and what I was willing to pay. It’s not corner crossing in my case, but state land sections completely surrounded by private.

Completely agree access affects value. I own a piece of land in Wyo that borders public. The public is accessible by other means but the fact that I can walk out my door and hunt for tens of thousands of acres makes the parcel I bought more valuable than others and I paid accordingly.

The difference here is that my value was based on fact. The Elk Mnt value was based on false information. He was told he would have exclusive access when in fact he would not. Would be like if my RA told me my neighbors would only allow me and only me to access their land if I bought mine but having nothing in writing say this was true. Then seeing others hunting it. My beef should be with the RA and myself not the folks hunting.

 

[JM77]

Good post.

Point 1 is that the corner is vested in the several owners...meaning in a checkerboard situation the public is vested in half the ownership. I'm aware of no law that says Eschelmans private property rights trump those of the public.

The other point regarding 10-4-303...there is no penalty in statute if a pilot violates that title 10 language. @JM77 can weigh in on that...

This comment is an edit and as pointed out by @Sytes there is a criminal penalty for air space violations as spelled out in Title 10 of the Wyoming Statutes. The misunderstanding comes from a Sgt at the Natrona County Sheriffs Dept who advised me he couldn't charge an ultralight pilot who was interfering with hunting by flying low and spooking elk. Moral: don't trust LEOs on statute without reading for yourself.

On another note, Mr Rinehart is in full damage control mode claiming he was forced to give a "value letter" under threat of subpoena. I asked him what he was paid for the letter; no reply. I asked him how Eshelman knew his letter would help his cause; no reply. I also mentioned his letter was worthless without him being available for cross examination in court(at least I think that's the case) and again no response. Genuine is not an attribute that describes this fellow.

 

[kansasdad]

Genuine is not an attribute that describes this fellow.

What a lovely way to call someone is a prevaricator!

 

[Wildabeest]

Fair enough. I've got a follow-up hypothetical question for you.

Is a helicopter a legal way to access the landlocked state land to which you're referring? Assuming so, do you think you should be able to successfully sue the hunter or helicopter pilot that legally accesses that land because you feel it devalued your deeded property and you were hoping nobody would ever exercise that right?

I don’t know if you could legally access via helicopter or not. But regardless, I don’t think I should be able sue someone who does. Even if it did reduce my property value. That’s a risk I took when buying it, and if I didn’t perform due diligence to understand those risks, then that’s on me.

I didn’t buy those properties to protect access. I bought them as investments and to get access. Just playing the hand we’re dealt.

 

[Elkmagnet]

Maybe an attractive nuisance that he created. Think that has a place in civil law, don't know if it applies to this scenario.

I would argue that the actions of the 4 hunters (hunting across corners) did none of this. The landowner taking the hunters to court and pushing it so hard has forced the issue and the results.
It's not a question of was the land devalued its who caused it to go to judgment and be devalued? Who caused the publicity? Who forced the issue? The hunters would have likely been happy to keep killing elk and being alone back there.