Corner Crossing: A Solution

[VikingsGuy]

There a many ways Corner crossings can work. However the logistics is not the problem. The problem is the lack of will to address the issue. When Most of the corners in question occur on ranch land that the current owners also have de facto ownership of the BLM ( other lands types as well) and they make huge lobby in the form of big ranching and farming, no amount of logical solutions will get these people on board. Why in the world would they want to address the issue?

spot on

 

[VikingsGuy]

Much legaleze fluff there.

I agree, that's why I said more simply earlier, but got called out - so thought expansion would be helpful for some.

 

[VikingsGuy]

Vikingsguy---It is my understanding that Montana has an actual statute that makes corner crossing illegal even if the corner is well marked by some type of a legal surveyor pin or similar designation. Wyoming, on the other hand, doe not have anything on the books that makes corner crossing to hunt or fish legal or illegal. That is why G&F lost that type of case in Albany County when the hunter entered a not guilty plea on a ticket he received and the Judge dismissed the case. That then caused the G&F Director to issue a directive that GWs would no longer issue a ticket if a landowner complained that was how a person got to legal public land when they owned the adjacent properties. I believe a followup comment by the AG was that a person could possibly be prosecuted for criminal trespass, but not under the G&F statutes because there were none if a person had no intent to stay on the private land. That now leaves it up to the Sheriff Department in each county as to whether they will write a ticket if a land owner contacts them and before they do that they have to know if their County Prosecutor will prosecute a person who enters a not guilty plea and goes to court like the guy did in Albany County. You may know all of this, but I thought I'd throw it out so others that don't know about the technicalities of corner crossing are at least in those two states.

That's my understanding as well.

 

[Topgun 30-06]

There a many ways Corner crossings can work. However the logistics is not the problem. The problem is the lack of will to address the issue. When Most of the corners in question occur on ranch land that the current owners also have de facto ownership of the BLM ( other lands types as well) and they make huge lobby in the form of big ranching and farming, no amount of logical solutions will get these people on board. Why in the world would they want to address the issue?

Every citizen has as much ownership of that landlocked land you're talking about as the adjoining landowner who may think they are the sole owner. I do agree with you that it will probably be impossible to get more than a small share of those land owners to agree to anything that would remotely open that landlocked public land for anyone other than their own use for exactly the reason you stated.

 

[VikingsGuy]

Always annoys me when you see properties at land sales that state "Beautiful 5000 acre property, 800 acres deeded"... so you using the fact that you are holding 4200 acres of our land hostage as a selling point. (Any yeah I get this has to do with grazing allotments... but it still rubs me the wrong way.

Yup - and because people paid for that advantage, they are unlikely to voluntarily give it up for free - legal or not.

 

[Schaaf]

Vikingsguy---It is my understanding that Montana has an actual statute that makes corner crossing illegal even if the corner is well marked by some type of a legal surveyor pin or similar designation. Wyoming, on the other hand, doe not have anything on the books that makes corner crossing to hunt or fish legal or illegal. That is why G&F lost that type of case in Albany County when the hunter entered a not guilty plea on a ticket he received and the Judge dismissed the case. That then caused the G&F Director to issue a directive that GWs would no longer issue a ticket if a landowner complained that was how a person got to legal public land when they owned the adjacent properties. I believe a followup comment by the AG was that a person could possibly be prosecuted for criminal trespass, but not under the G&F statutes because there were none if a person had no intent to stay on the private land. That now leaves it up to the Sheriff Department in each county as to whether they will write a ticket if a land owner contacts them and before they do that they have to know if their County Prosecutor will prosecute a person who enters a not guilty plea and goes to court like the guy did in Albany County. You may know all of this, but I thought I'd throw it out so others that don't know about the technicalities of corner crossing are at least in those two states.

Cite the statute please.

There is none.

 

[Topgun 30-06]

Cite the statute please.

There is none.

There may be none and that is exactly why I said it was my understanding. However, every time corner crossing comes up various residents in Montana state it's illegal there. It appears after doing a search on it that there is no statute just like there isn't any in Wyoming. The following is a post from a Montana GW that I have C/Pd from another website hunting forum:

Our policy was not to write citations in these cases and instead investigate and refer them to the county attorney for consideration. The exception being if the crossing was obviously not at the corner- that person(s) was cited. There were several folks that decided it was worth rolling the dice, none that I’m aware of that were prosecuted. I did have one fellow that was very up front a about it and even let the landowner know that he was going to be crossing, sadly he came back to truck with four flat tires, no proof, but obvious who did it. Bottom line- you are rolling the dice, if a prosecutor wants to pursue charges, he will- doesn’t mean he will win, but it will consume your time and money.

 

[Straight Arrow]

Much like the upcoming rally on Friday in the Montana Capitol Rotunda, during the 2013 Legislative session many of us packed the building in an impressive showing of sportsmen and women from all over Montana attempting to "blast" House Bill 235 out of committee onto the chamber floor to have a vote on the controversial "corner crossing" bill. It was a great public display and public access effort, but failed.

The issue remains largely unresolved in Montana, as well as elsewhere. There is no statute one way or another in Montana.

 

[Straight Arrow]

However, every time corner crossing comes up various residents in Montana state it's illegal there.

'Depends on the "various" residents to whom you are listening. Proponents of HB 235 asserted legality in stepping from one public parcel to another. The opposing "various" residents claimed it was trespassing to violate that "space" at the checkerboard intersection of private and public parcels.

 

[Nameless Range]

I encourage folks to listen to Randy's most recent podcast. He paid a Montana Law firm with expertise in these types of issues to perform an analysis. I hope he chimes in here, but as I understand the short of it was, even if the criminal trespass issues were resolved, and that's a big if, there is still the issue of civil trespass, whether damages were incurred or not.

I am not a lawyer, rather, some dude who listened to a podcast. YMMV.

 

[VikingsGuy]

I encourage folks to listen to Randy's most recent podcast. He paid a Montana Law firm with expertise in these types of issues to perform an analysis. I hope he chimes in here, but as I understand the short of it was, even if the criminal trespass issues were resolved, and that's a big if, there is still the issue of civil trespass, whether damages were incurred or not.

I am not a lawyer, rather, some dude who listened to a podcast. YMMV.

I heard the podcast. I took it as a reminder that we are dealing with two somewhat different bodies of law. I agree that to really fix this, you fix both - fixing one just pushes the argument to the one that isn't fixed. And both are readily subject to a legislative, judicial and/or ballot solution if folks have the will to push it. If somebody wants to start up a legal defense fund or lobbying push let me know, would be happy to donate.

 

[Topgun 30-06]

'Depends on the "various" residents to whom you are listening. Proponents of HB 235 asserted legality in stepping from one public parcel to another. The opposing "various" residents claimed it was trespassing to violate that "space" at the checkerboard intersection of private and public parcels.

I'm talking about hunters on this and several other big hunting websites that have made that statement, not landowners! In a quick search while I had time today I found there is no statute in Montana just like there isn't in Wyoming.

 

[Big Fin]

One of the points I made in the podcast was to distinguish between the two facets of trespass; criminal trespass, as defined by state law, and civil trespass, a tort that is not defined in state criminal statute.

Following the Montana legislative attempts to define/redefine/clarify what constitutes criminal trespass at these corners, I sought legal opinions on the topic. All legal opinions I have sought, some of which I have paid to provide an opinion, tell me that regardless of the state statute definition of criminal trespass, corner crossing is deemed to be civil trespass. Even if you can find that infinite intersection of parcels, something very difficult to do at times, it has been explained to me that crossing there is still civil trespass. For that reason, corner crossing is now off my list. I understand others have a different perspective and will only focus on the criminal statute.

I have put a call in to one of the attorneys who I have hired previously and has specialty in this area. I am hoping to get him on the podcast this winter. He would do a far better job of explaining the intricacies than I ever will in my laymen's recital of his findings provided to me.

I think that the long-term solution, as expensive and as unlikely as it would be to happen over large landscapes, is sticking to a willing buyer-willing seller for such easements. Not a popular solution, not a solution likely to happen in our lifetimes, but not sure how else you do it and respect the 5th Amendment rights that come with property ownership if corner crossing is deemed to be civil trespass. If corner crossing is deemed to not be civil trespass, my perspectives would change.

 

[scubohuntr]

I don't think the law will ever change, at least not to our benefit. Think about it- it is political suicide for a legislator to vote against landowners, particularly when agriculture is involved. The better solution, as far as I can see it, is easements. Cut the corner on one cooperating person's land, pay for reconstruction of a high-quality squared off 45° fence corner that would provide a ten-foot corridor of non-motorized access across landowner A's property. It doesn't touch landowner B's property, no stiles or bridges required. It would involve 200 square feet of land (0.005 acre), and the landowner would get a new top of the line fence corner and a ridiculously lucrative (considering the acreage and impact) easement payment, based on the amount of public land made accessible. It would cost the sponsoring agency or organization an annual easement fee, and a couple of hundred dollars in fencing. There would be legal costs at the outset to set up the easement policies, of course, but they would amortize over the (hopefully) hundreds of easements installed. You could even get sportsman's clubs, businesses, and individuals to sponsor the fencing materials for a particular project in exchange for a tasteful placard at the corner. And because it is a voluntary agreement between Landowner A and the sponsoring agency, no change to the law is required. It wouldn't make all the landlocked public land in Montana accessible, of course; even if all eligible landowners participated. But it would be a start.

 

[BuzzH]

Randy, in the case of civil trespass, doesn't the individual have to file suit against you for trespassing?

If that's the case, the typical punishment is an award (in the form of money) from any damages you cause from your trespassing?

What would a judge award a plaintiff for occupying their air space for maybe 1 second, never doing any "damage" to anything physically on their property? Would the plaintiff not have to prove damages to receive compensation?

Criminal trespass, If I recall correctly, is enforced by sheriff or other LEO and prosecuting attorney and you're subject to a fine/prison time.

Seems to me that if most jurisdictions would view it as civil trespass, I'd be wayyyy more inclined to corner cross vs. doing the same with the threat of criminal trespass.

 

[Deleted member 28227]

I don't think the law will ever change, at least not to our benefit. Think about it- it is political suicide for a legislator to vote against landowners, particularly when agriculture is involved. The better solution, as far as I can see it, is easements. Cut the corner on one cooperating person's land, pay for reconstruction of a high-quality squared off 45° fence corner that would provide a ten-foot corridor of non-motorized access across landowner A's property. It doesn't touch landowner B's property, no stiles or bridges required. It would involve 200 square feet of land (0.005 acre), and the landowner would get a new top of the line fence corner and a ridiculously lucrative (considering the acreage and impact) easement payment, based on the amount of public land made accessible. It would cost the sponsoring agency or organization an annual easement fee, and a couple of hundred dollars in fencing. There would be legal costs at the outset to set up the easement policies, of course, but they would amortize over the (hopefully) hundreds of easements installed. You could even get sportsman's clubs, businesses, and individuals to sponsor the fencing materials for a particular project in exchange for a tasteful placard at the corner. And because it is a voluntary agreement between Landowner A and the sponsoring agency, no change to the law is required. It wouldn't make all the landlocked public land in Montana accessible, of course; even if all eligible landowners participated. But it would be a start.

Definitely a possibility in some areas, but there is a huge amount of land where the surveys are crap, it's perfectly checker-boarded, the adjacent land owner has a fence around his deeded land and the BLM as he holds the lease and there is virtually no way to find the corner aside from a pin, which as others have said can be very difficult to find even with survey grade GPS equipment.

Example, (I'm not saying this is what is going on, these exact parcels... but there are similar looking ownership configurations where it is)

The red line is where the landowners fence is located, let's say there the blue line in the NW corner is a public road. You aren't jumping any fence and any lines between private and and public are completely "imaginary"?? I don't know if that's the right word. I'm not sure other than making corner trespassing legal, how would deal with this...

 

[VikingsGuy]

but not sure how else you do it and respect the 5th Amendment rights that come with property ownership if corner crossing is deemed to be civil trespass.

I chose to not corner cross this year in WY because, in the face of ambiguity, I too tend favor action that honors the law and honors the property right of others.

That being said, it is good for us to be clear what we can and can't do to address this issue. Civil laws are subject to legislative revision just like criminal laws (in fact the majority of laws are "civil" in nature). MT and WY legislatures can absolutely clarify by statute that the civil tort of trespass does not include pedestrian corner crossing.

And it is very unlikely that that change in tort law would be a "taking" under the 5th Amendment, as it does not transfer the property to the government or necessarily convert it to public use (because the primary use involved is the use of the public land and its corners, with only incidental/unintentional/trivial use of the private corners), but merely clarifies the tort rights between various private parties.

Even if it was viewed as a "taking" for 5th amendment purposes, the government compensation would likely be small. "Just compensation" under the 5th is typically is the fair market value of the the exact land effected, in this instance a few square yards of prairie. Arguments like, "you are giving access to BLM that is worth thousands of dollars per hunter per year" or "I paid 20% more for my actual deeded property because I paid extra for the benefit of restricting access to adjacent public land by others" are likely losers as SCOTUS has already held in United States v. Fuller that the valuation does not include benefits derived from the land's proximity to other government land.

I understand why some land owners are against corner crossing, and why some legislators prioritize big land owner preferences over out of state hunters, and why my out of state preference is not their problem. But we should all be clear that there is simply no legal/constitutional/financial barrier that would prevent the MT or WY legislature from fixing this in a one page statutory amendment. The only barrier is political will/agreement.

 

[Randy11]

a pin, which as others have said can be very difficult to find even with survey grade GPS equipment.

Often times it's not a pin, it's a stone that someone placed 120 years ago, with a cryptic carving on the side of it that may or may not still be legible.

And who's to say whether or not that stone is still there, or if a farmer in the great depression moved it to build a wall or cairn.

There's just an incredible amount of grey area when it comes to where the corner is when you get in very rural areas.

 

[Nameless Range]

Often times it's not a pin, it's a stone that someone placed 120 years ago, with a cryptic carving on the side of it that may or may not still be legible.

And who's to say whether or not that stone is still there, or if a farmer in the great depression moved it to build a wall or cairn.

There's just an incredible amount of grey area when it comes to where the corner is when you get in very rural areas.

Seems like any solution, whether it be the purchase of individual easements, or a wholesale legalization, would require a fair amount of surveying/marking to be above board.

 

[Deleted member 28227]

Often times it's not a pin, it's a stone that someone placed 120 years ago, with a cryptic carving on the side of it that may or may not still be legible.

And who's to say whether or not that stone is still there, or if a farmer in the great depression moved it to build a wall or cairn.

There's just an incredible amount of grey area when it comes to where the corner is when you get in very rural areas.

I had to map a deed for a lease in Texas a couple of years ago that read,"...from the big cottonwood tree next to the big rock being the North West corner of this property, ride at a walk for 3 hours due south to the large bend in the river for the southwest corner off this property..."

All things considered finding corners in WY, CO, and MT isn't that bad as we use a Jeffersonian system, I can't imagine what this would be like if everything was metes and bounds like most of the east. West Virginia in particular would be a disaster of epic proportions.