Aerial (Low Altitude) Public Land Access

[Hilljackoutlaw]

The thing that was really quite annoying in my case in Idaho is that not ONE agency could explain the law to me, and I asked everyone from the local level up to the state level. Still waiting for answers 2 years later.

I did get some half assed responses and a few "I think" responses but no real answer to my question.

 

[VikingsGuy]

I would be curious to read the Montana statute pertaining to air space. Since you have read it, would you post that or the title and section for it?

Matter of common law very similar to corner crossing, so no statute to cite. I think it’s silly, but historically the common law has been very ridged in its view of property lines. But maybe locals have started to look the other way on this as some counties in WY are doing with corners.

 

[JDH]

Find out how wide the easement for the county road is. In most cases the easement is wider than the actual road itself. You might be just fine walking.

I would do this.

 

[Straight Arrow]

Call the regional FWP office and inquire. The local FWP guys and gals are familiar with all state sections in the region and likely have a quick answer for you.
I would be very surprised if you were the first hunter to want to hunt that section.

 

[Hilljackoutlaw]

I would do this.

I did this...didnt help me. All that did was prove I could legally park there.

 

[JM77]

Matter of common law very similar to corner crossing, so no statute to cite. I think it’s silly, but historically the common law has been very ridged in its view of property lines. But maybe locals have started to look the other way on this as some counties in WY are doing with corners.

So talk to your local LEO and ask him/her what they write on citations when no statute or regulation exists. Do they put "Common Law"? I doubt that, in fact I know they don't.

Also, and this is very important: which counties in Wyoming don't look the other way on corner crossing?

 

[VikingsGuy]

So talk to your local LEO and ask him/her what they write on citations when no statute or regulation exists. Do they put "Common Law"? I doubt that, in fact I know they don't.

Also, and this is very important: which counties in Wyoming don't look the other way on corner crossing?

I am answering in general, if you want a full blown legal memo feel free to hire a MT lawyer. But in general, they would cite the general trespass statute on a ticket. In court you would argue you didn’t “enter” because you hopped, the judge would say common law says hopping is entering.

As for corner crossing in WY, the HuntTalk lore as posted many times by others who know more than I, there was a former AG that had a memo saying corner crossing OK. Subsequent AG kinda back tracked a little but didn’t fully recant, some local sheriffs/county attorneys have accepted memo, others haven’t. I personally assume it is not ok on these facts, but others more knowledgeable seem confident it is ok. YMMV.

 

[JM77]

I did this...didnt help me. All that did was prove I could legally park there.

Not sure what you mean by this. Did the easement for the public road touch the public land?

An easement allows for ingress and egress and will clearly state how wide it is. For instance, if it is 60, 30 or 15 feet, travel is allowed within that distance. Of course, there is a possibility that the landowner who allowed the easement, only gave it for travel to just a specific piece of public land.

 

[JM77]

I am answering in general, if you want a full blown legal memo feel free to hire a MT lawyer. But in general, they would cite the general trespass statute on a ticket. In court you would argue you didn’t “enter” because you hopped, the judge would say common law says hopping is entering.

As for corner crossing in WY, the HuntTalk lore as posted many times by others who know more than I, there was a former AG that had a memo saying corner crossing OK. Subsequent AG kinda back tracked a little but didn’t fully recant, some local sheriffs/county attorneys have accepted memo, others haven’t. I personally assume it is not ok on these facts, but others more knowledgeable seem confident it is ok. YMMV.

Oh, sorry, I thought you were the HT lawyer. My mistake...

 

[BuzzH]

In court you would argue you didn’t “enter” because you hopped, the judge would say common law says hopping is entering.

That’s not what judge Robert castor ruled in Albany county...

 

[Hilljackoutlaw]

Not sure what you mean by this. Did the easement for the public road touch the public land?

An easement allows for ingress and egress and will clearly state how wide it is. For instance, if it is 60, 30 or 15 feet, travel is allowed within that distance. Of course, there is a possibility that the landowner who allowed the easement, only gave it for travel to just a specific piece of public land.

It means even tho there was an easement they still couldn't tell me if I was legally aloud to go into that public ground. They never showed me a law or explained it. All they kept saying is "mr. Stecklien is having a fit over it so it's best just to not start a problem" stecklien is a big farmer in the area.

So what I took from it was I should just deal with it and not create an issue because they didnt want to deal with stecklien

 

[VikingsGuy]

Oh, sorry, I thought you were the HT lawyer. My mistake...

So your point (other than being snarky with me) is what? That Montana law provides no vertical trespass protections? If that is so then maybe you should post a statute or binding precedent to that effect and I will apologize for posting general guidance for a MT specific question.

 

[Hilljackoutlaw]

Not sure what you mean by this. Did the easement for the public road touch the public land?

An easement allows for ingress and egress and will clearly state how wide it is. For instance, if it is 60, 30 or 15 feet, travel is allowed within that distance. Of course, there is a possibility that the landowner who allowed the easement, only gave it for travel to just a specific piece of public land.

I also mean it annoys the chit out of me that none of the people I talked to know their job well enough to give me a damn straight answer!

 

[VikingsGuy]

That’s not what judge Robert castor ruled in Albany county...

That’s what I have heard. Still would be nice to have binding precedent or statute to that effect.

It makes sense that locals are comfortable with the gray area, and it is entirely possible in the end if anybody actually pushes this to the WY SC that there is a statewide outcome to this effect. But I go hunting to relax, not to fight with local landowners, LEOs or county attorneys about subtle legal principle, so I choose explicit legal direction when I am on vacation.

 

[VikingsGuy]

I also mean it annoys the chit out of me that none of the people I talked to know their job well enough to give me a damn straight answer!

I understand the irritation, but it is fairly common for government employees not to provide legal judgement. I wouldn’t if I was in their shoes - only downside for them.

 

[Ben Sellers]

If the standard for trespass was not touching the ground and staying in the airspace, you could just use a hovercraft and go where you wanted.

 

[JM77]

If the standard for trespass was not touching the ground and staying in the airspace, you could just use a hovercraft and go where you wanted.

Wyoming actually has a statute pertaining to air space and whether or not it belongs to the landowner. The purpose is disturbance caused by low flying aircraft. In this case, an LEO can write the citation for violation of airspace, pertainent to a specific law; for low flying aircraft.

 

[JM77]

So your point (other than being snarky with me) is what? That Montana law provides no vertical trespass protections? If that is so then maybe you should post a statute or binding precedent to that effect and I will apologize for posting general guidance for a MT specific question.

Apparently it is just you that is allowed to post "general guidance", with absolutely nothing to back it. This you have done repeatedly on this thread in reference to air space and corner crossing. My point is someone is guilty when they break a law. If there is no law to address the action, good luck to the prosecution who carries "common law" into the courtroom to prove guilt on such specific matters.

Snarky?

 

[VikingsGuy]

Apparently it is just you that is allowed to post "general guidance", with absolutely nothing to back it. This you have done repeatedly on this thread in reference to air space and corner crossing. My point is someone is guilty when they break a law. If there is no law to address the action, good luck to the prosecution who carries "common law" into the courtroom to prove guilt on such specific matters.

Snarky?

The potential broken law is trespass, the question is “does jumping over” equal trespass, that is a question answered either by specific statutory language (which often lacks such detail) or common law. It is the foundation of our entire legal system, so I find your objection a little off.

 

[Deleted member 28227]

@VikingsGuy and others on the thread help me understand prescriptive easements.

Generally speaking, if say 50 guys from hunt talk decided that for the next five years we were going to periodically tresspass in the spot the OP found, basically making a trail to access the state land that it would then in year 6 be considered an easement? Does it matter if we are ticketed every-time we cross there but keep doing it anyway?

I believe this is the language regarding the subject.

"prescriptive easement actions require proof of open, notorious, exclusive, adverse, and continuous possession or use for the statutory period of 5 years."

"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. "