Montana Prescriptive Easements


Not everyone understands the Prescriptive Easement process currently involving the Crazy Mountains or the covert attacks to prevent our Federal public land managers from being able to perfect a historic prescriptive easement for public and agency access nationwide. Certain privatizing landowners and PERC are trying to make this out to be a private property "taking" by the Public, it is not. Just the opposite, prescriptive easements involving public lands are a protecting of the historic public access from a private taking. Historic use law recognizes historic legal access.

There are examples, here in Montana, of historical prescriptive easements being perfected legally, due to an obstruction of access: one private landowner and another, a private landowner and a federal agency, a private landowner and a utility co., for example.

So here are some Prescriptive Easement basics, which I will flesh out better shortly.

  • Adverse possession is a method of acquisition of title to property by possession for a statutory period under certain conditions. Adverse possession is statutorily addressed in Title 70, chapter 19, part 4, MCA.
  • "A prescriptive easement is a form of adverse possession. However, a prescriptive easement provides only a right to use the property of another for a limited purpose." 1
  • "In order to create a public right-of-way by prescription, the evidence must establish that the public has pursued a definite fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under a claim or color of right for the statutory period of time." 1
  • Only one Montana statute specifically addresses prescriptive easements. Section 23-2-322(1), MCA, "1) A prescriptive easement is a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years."
  • "An easement is a nonpossessory interest in land, and therefore, it cannot be created, granted, or transferred except by operation of law, by an instrument in writing, or by prescription." 1
  • In the case of a Federal public lands managment agency, "If the Court decides that a right has been establistred, it becomes a property right to be held until relinquished by the U.S. The
    U.S. would acquire a right to the extent of historic use onIy.Therefore, it is important to establish what was the extert. of'historic use'. Maintenance records are a must in proving our case."
    2
  • "In situation where an existing NFS trail crosses private lands, and no deeded easement exist, the Forest Service position is as follows: The United States has acquired a right-of-way from the trail
    through development, maintenance and continuous use of the trail. As a matter of law, the Forest Service believes that there is a public access easement for the trail. The Forest Service is a beneficiary of this public right of access, will continue its efforts to defend the public's right of access." 3

Enhancing Montana's Wildlife & Habitat

www.EMWH.org

Have you been in the Crazy Mountains?

If you have been in the Crazy Mountains...

  • perhaps you received a citation when you were on a FS Trail on their map;
  • perhaps you have been on one of these contested trail and you thankfully did not ask landowner permission or sign in and would like to add your account to the prescriptive easement history;
  • perhaps you would just like to share your story and/or some pictures of what these particular public lands and access mean to you?

If so, please contact Kathryn :

kathryn@emwh.org

406-579-7748

Crazy Mountain Public Access Page

 

I beg you to show the same level of defense for our public access and Alex Sankiewicz's reinstatement as Yellowstone District Ranger, by raising your concerns to the same officials that the privatizers just did with false allegations. Because when you see the roll out of information to come and the players agendas, you will agree, this isn't just about one man and his job, it is about what he was doing as a steward of our public lands that others greedily desire for their own.

Secretary of Agriculture, Sonny Perdue, U.S. Department of Agriculture, 1400 Independence Ave., S.W., Washington, DC 20250 (202) 720-2791

Forest Service Chief, Thomas Tidwell, ttidwell@fs.fed.us (202) 205-8439

Region 1, Regional Forester Leanne Marten, lmarten@fs.fed.us (406) 329-3315

Custer Gallatin National Forest Supervisor Mary Erickson, mcerickson@fs.fed.us (406) 587-6949

Senator Steve Daines, steve@daines.senate.gov (202) 224-2651

Even though Sen. Tester was not evident in the letters, please contact him as well.
Sen. Jon Tester, senator@tester.senate.gov (202) 224-2644


 


 

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