Landowner Closes A Public Road: What Next

[Nameless Range]

I think in MT it may be a bit different:

Prescriptive Easement "requires proof of open, notorious, exclusive, adverse, and continuous possession or use for the statutory period of 5 years." And the burden of proof is on the party trying to establish prescriptive easement- in this case the USFS.

https://www.emwh.org/issues/public%20trust/prescriptive%20easements%20and%20ways%20of%20necessity.pdf

I believe the landowners have their own perspective in this too. The more I look into it the more complicated I believe this is. Though my initial reaction is rage and bolt cutters, I am gathering information and really would like to know that if the USFS believes that road provides public access, what are they doing about it and what timeline are they working under. I can prove open and continuous use by the public of that road over the last 5 years, but that stopped last year, and the longer nothing is done the more concerned I get that nothing will be done.

 

[Pucky Freak]

An attorney can be retained for $5000 or so. A letter threatening legal action cost about $1.

If access is truly gateable, it doesn’t matter if the landowner just decided to put up a gate after 100 years of not having one. If the gate is not allowed, it doesn’t matter how many months/years it stays up. Once it is eventually ordered down, it will come down.

Maybe play the silly game of calling for access in the meantime until it is ironed out.

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

 

[RidgeRoamingRichard]

A landowner has gated a road in my neck of the woods that has been open to the public for decades if not 100 + years. The landowner began doing this last fall. They put up a gate, and put up a sign that says "Call for permission". The first mile of the road does go through private property.

At this point I won't bring up all the evidence I have to believe that this road is public, outside of saying I have been acquiring a collection of historic maps, dozens of local accounts spanning the last 5 decades, newspaper articles, C.O.S.'s and Deeds. I have driven up this road my whole life - for hunting, fishing, firewood, and fun.

I have reached out to the USFS. They agree they have an easement and that it is a public road. They have said they are, "Working to resolve the issue." That was months ago, and my follow-up email has not been answered.

My concern is that the longer this road stays gated, the weaker the case will be that this is a public road. I reached out to a local 4x4 club and people within that group have been calling the number to get access, which only fortifies a precedent that this is not a public road. Bothersome.

Is it appropriate to pester the USFS more - like show up and bug them in person to explain what their plan is? Their priorities are board feet and fire resilience right now, they are wildly understaffed, there's a virus afoot, and I am concerned that this will go by the wayside long enough that the case will weaken to the point of being defeated. The country this road gives access to is accessible via other means, it's just over an hour detour either way. I don't want to raise hell over something that progress is being made on, but what does "working to resolve the issue" mean and how long is acceptable before I get many more people involved?

Though this is a USFS road and not a county one, my next step was to bring this up with the County Commissioners.



Here's a photo of some of the wonderful country this road gives access to.

View attachment 133273

Being that we roam some of the same places, I'd be happy to help in any way I can

 

[NYyotekiller]

If access is truly gateable, it doesn’t matter if the landowner just decided to put up a gate after 100 years of not having one. If the gate is not allowed, it doesn’t matter how many months/years it stays up. Once it is eventually ordered down, it will come down.

Unfortunately that is not the case when it comes to an easement by prescription and/or adverse possession requirements. Statutory time frame is most definitely a factor.

If the gate is up for its statutory time frame and it's not contested by anyone then it will be virtually impossible to rule against. And on the other hand, if use/access has been open, notorious, hostile, and continuous for the same amount of time than a prescriptive easement will be the case.

The question here though is if the USFS will take the needed steps in order to acquire an easement if one is not already created.

 

[grizzly_]

Does MT not have a law barring the gating of public roads?

Heck, I don't like traffic in front of my house... maybe I'll put up a gate! I'm pretty sure in Utah that's unlawful.

If it's unlawful, call the sheriff and show him the law and tell him to enforce it. Let them fight your fight.

 

[grizzly_]

PS. In addition to prescriptive easement possibilities, you/the public may have a claim under "adverse possession" in the right circumstances

 

[utah400elk]

I believe these things could be handled relatively quickly. Many times these land owners use the public roads to get to their property and then use the existing roads to drive onto the public.

I wish the BLM, FS, and or county would simply close the road 1 mile before their property begins and the. Immediately after it leaves their property. Make the landowners property an island. I would imagine the landowners would be more amenable to finding a quick resolution that would benefit everybody. What I see is that they depend on the public access but also try and hold the public hostage. If we, the public, took away that leverage then they might realize the benefits they are getting off our backs.

I am sure there are multiple reasons this can’t be done but would rapidly expedite this dispute resolution. I feel for the land owners but they are locking up millions of acres of public lands.

 

[grizzly_]

I believe these things could be handled relatively quickly. Many times these land owners use the public roads to get to their property and then use the existing roads to drive onto the public.

I wish the BLM, FS, and or county would simply close the road 1 mile before their property begins and the. Immediately after it leaves their property. Make the landowners property an island. I would imagine the landowners would be more amenable to finding a quick resolution that would benefit everybody. What I see is that they depend on the public access but also try and hold the public hostage. If we, the public, took away that leverage then they might realize the benefits they are getting off our backs.

I am sure there are multiple reasons this can’t be done but would rapidly expedite this dispute resolution. I feel for the land owners but they are locking up millions of acres of public lands.

They can't close the road prior to the landowners property as the land owners have "easement by necessity" but that sword can cut both ways to the land on the other side of their property too.

 

[BuzzH]

I'm no expert on these closures, but I would highly recommend getting right on this. Time is not on your side...ever, in these cases.

 

[Pucky Freak]

I'm no expert on these closures, but I would highly recommend getting right on this. Time is not on your side...ever, in these cases.

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?

 

[Straight Arrow]

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

 

[44hunter45]

I think in MT it may be a bit different:

Prescriptive Easement "requires proof of open, notorious, exclusive, adverse, and continuous possession or use for the statutory period of 5 years." And the burden of proof is on the party trying to establish prescriptive easement- in this case the USFS.

https://www.emwh.org/issues/public%20trust/prescriptive%20easements%20and%20ways%20of%20necessity.pdf

I believe the landowners have their own perspective in this too. The more I look into it the more complicated I believe this is. Though my initial reaction is rage and bolt cutters, I am gathering information and really would like to know that if the USFS believes that road provides public access, what are they doing about it and what timeline are they working under. I can prove open and continuous use by the public of that road over the last 5 years, but that stopped last year, and the longer nothing is done the more concerned I get that nothing will be done.

Do you have a recent USFS travel map listing it as a travel route? That is proof.

 

[Shangobango]

I am not an expert on this especially as related to the USFWS but I would call the person you spoke to with the USFWS on a regular basis, at the very least weekly. The squeaky wheel gets the grease.

I’m not recommending that you do what I did when a somewhat similar situation came up down here on a county road. I called and spoke to the Sheriff who called and spoke with the Police Jury President ( our local road department). He told me if I didn’t want to wait a couple hours until they could get someone out to me, hook a chain to it and drag it down.

When the landowner who put the gate up called the Sheriff a couple weeks later to report his missing gate, which between me and the police jury was reduced to only bare dirt spots where the round post holes had been, he was informed that the gate had been removed and he would be charged if he put it back up.

Like I said, I don’t recommend you doing that. That was a different time and a different place.

 

[44hunter45]

Wasn't there a killing in MT over this stuff? Hal Herring said he was on the jury. Bolt cutters and confrontation doesn't seem like the way to stay alive, even if you are in the right. We had a bill this year here in Idaho to make it easier to remove illegal gates, but it didn't make it out of committee. It felt to me that the Wilks Bros' lawyers spread some green love around to kill it.

 

[sharpshooter97]

I don't know how right of ways work in MT, but if there is a number on the gate or you know who the landowner is try getting a hold of them and talk to them about it if it is in fact a public road. You could probably fix the issue just by having a polite conversation about it, and if he's and asshole about it then I'd get the law involved. Just my 2 cents

 

[RobG]

OK, since southern elk asked I'll jump in.

If there was a recorded easement it would just be a matter of calling the sheriff to open back up the road. I expect what the FS said is that they *claim* there is a prescriptive easement on the road therefore they maintain that it is public. That's what they did in the Crazies. Unfortunately, until a prescriptive easement is proven in court their claim carries no more weight than the landowner's claim that there isn't one. So, it is probably safe to assume there is no recorded easement, thus the situation is not easy.

Generally, in Montana, if there is no recorded easement and the landowner is successful in controlling entry for a period of five years the trail (road) will no longer meet the requirements for a prescriptive easement. This is true even if it did meet the requirements previously, thus a prescriptive easement can be extinguished if nothing is done. While time is critical and this needs to be pursued, you do have five years.

I would ask the FS if there is a recorded easement for this road. If not, ask if have they filed a "Statement of Interest" for this road. If not, ask them if they are going to file one. An SOI means they are serious about getting this resolved. Otherwise, they could be "working to resolve the issue" for decades while the road remains gated. That is what happened in the Crazies.

By all means bug the FS in person. I've found them glad to talk about anything. Bring your information so they know you are serious and ask if there is anything you can do. If you aren't 100% sure they have the situation under control I would file an FOIA for all information about the road to add to your research.


I would say required reading is the entire wonder ranch case (attached). It details how the trail met all the requirements for an easement. Nonetheless, proving open, adverse, (etc) use in court is a lot more than throwing a a bunch of documentation on the table. It will be very expensive even if the attorneys are working for free. That trail was heavily used yet it still cost $1 million for the FS to secure access to it.

Yes, contact PLWA, but the more research you have done up front the better since they are really strapped for resources. In addition to all the documents you have already obtained, I'm sure it would be helpful if you knew if there was a statement of interest being filed.

 

[Nameless Range]

OK, since southern elk asked I'll jump in.

If there was a recorded easement it would just be a matter of calling the sheriff to open back up the road. I expect what the FS said is that they *claim* there is a prescriptive easement on the road therefore they maintain that it is public. That's what they did in the Crazies. Unfortunately, until a prescriptive easement is proven in court their claim carries no more weight than the landowner's claim that there isn't one. So, it is probably safe to assume there is no recorded easement, thus the situation is not easy.

Generally, in Montana, if there is no recorded easement and the landowner is successful in controlling entry for a period of five years the trail (road) will no longer meet the requirements for a prescriptive easement. This is true even if it did meet the requirements previously, thus a prescriptive easement can be extinguished if nothing is done. While time is critical and this needs to be pursued, you do have five years.

I would ask the FS if there is a recorded easement for this road. If not, ask if have they filed a "Statement of Interest" for this road. If not, ask them if they are going to file one. An SOI means they are serious about getting this resolved. Otherwise, they could be "working to resolve the issue" for decades while the road remains gated. That is what happened in the Crazies.

By all means bug the FS in person. I've found them glad to talk about anything. Bring your information so they know you are serious and ask if there is anything you can do. If you aren't 100% sure they have the situation under control I would file an FOIA for all information about the road to add to your research.

Ask Mike Korn about the implications and wisdom of cutting the lock or going past no trespassing signs. At the very least, do all your research beforehand because with criminal prosecution it gets weird as I found out.

I would say required reading is the entire wonder ranch case (attached). It details how the trail met all the requirements for an easement. Nonetheless, proving open, adverse, (etc) use in court is a lot more than throwing a a bunch of documentation on the table. It will be very expensive even if the attorneys are working for free. That trail was heavily used yet it still cost $1 million for the FS to secure access to it.

Yes, contact PLWA, but the more research you have done up front the better since they are really strapped for resources. In addition to all the documents you have already obtained, I'm sure it would be helpful if you knew if there was a statement of interest being filed.

Excellent information. Thank you.

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

I did write the county commissioners a letter, and I also wrote the district ranger a letter.

I have a lot of information about this, and I bet I have some that neither party involved has.

I’ll keep everybody here posted as it progresses

 

[Deleted member 20812]

@RobG what was the story with Mike?

 

[Straight Arrow]

Excellent information. Thank you.

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

I did write the county commissioners a letter, and I also wrote the district ranger a letter.

I have a lot of information about this, and I bet I have some that neither party involved has.

I’ll keep everybody here posted as it progresses

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.

 

[RobG]

@RobG what was the story with Mike?

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!