Corner Crossing thoughts part 2, question

[300stw]

with all the legal minds on this forum here is the next question,,,,,

lets discuss a blm corner or any public corner that ties into a public county road, a county road has X amount of legal right of way attached to the actual drivable surface, so the blm map shows the corner of blm touching or going into the row,
How much of the blm land has to touch to row to be able to make a legal crossing, 1in, 1 foot, 10 feet, with all the arguments saying corner crossing is illegal in Montana, where is the wording , statute ,ect. that defines how much property is needed to cross from one property to the other,

Lets not talk about, "I think" or "should be" or "common sense would dictate" because those comments are said not to exist in the actual corner to corner, very defined exact spot,,,, discussions,,,,,

lets hear the legal minds,,,,

 

[Sytes]

None. If I understand your question - if a corner ties into legal public rights on 3 of the corners - thinking checkerboard...? In Montana I would imagine you are speaking?

 

[James Riley]

I'm not sure I understand your question and I don't know what you mean by "row". But *if* I get your drift, then, if you are on legal right of way and a public land corner touches that right of way, then the width of that right of way/public land intersect would dictate what you could move through it to the public land. So, if it was 1" then you couldn't really cross, since you are more than 1" wide. If it were 1', then you might be able to get on if you were 1' or less in width, turned sideways. I've never measured myself that way so I don't know. If I could do it, then I certainly could not have an erection when I did it. If it were 10' then yeah, walk on through. Ride a horse, maybe even a car, since most are less than 10' wide.

The point here is that you can be on the right of way, and you can be on the BLM, but you can't cross the private property on either side without permission.

On the 1", I read a case about shooting over private property. It is trespass. But you could, in theory, shoot through that 1". But you couldn't get in to get your game, or get it out.

 

[Straight Arrow]

I believe the access rule requires the road to pass through the BLM tract (implying more than one point) or be a boundary of the BLM tract.

It seems that until the corner crossing issue is clearly resolved, then these discussions about jumping over points, climbing ladders over corners, and such are really just ideas to circumvent the issue. Unfortunately they serve to exacerbate the problem by further alienating the staunch "property rights" landowners.

 

[James Riley]

It's simple, really:

1. Don't cross through another person's private property without permission, regardless of how unobtrusive or non-damaging you perceive the crossing to be;
2. Have your government condemn/eminent domain/force access.
3. Ignore the law.

"Most people consider the things which government does for them to be social progress, but they consider the things government does for others as socialism." Earl Warren, 14th Supreme Court Chief Justice.

 

[Schaaf]

...In that situation I'm going to hunt public land.

 

[300stw]

not alienating me, I am a landowner in 3 states, making sure I understand what constitutes" legal" , also making sure anywhere there is a possibility of me accessing public land, I will do so , making sure any of this "so-so " spots are clearly defined, as of this morning the local warden sent me maps of 4 areas that I have been contending their is access, even though they landowners have harassed me continuously when I am there. his finding is there is public access, but he wont do anything about the paint and signage, " I don't know who put up the signs or paint" his quote, well it wasn't me that signed it illegal but I would bet a dollar the closest landowner knows who did it,,,,

also cant get anyone to write a ticket for hunter harassment,,,,

I believe the access rule requires the road to pass through the BLM tract (implying more than one point) or be a boundary of the BLM tract.

It seems that until the corner crossing issue is clearly resolved, then these discussions about jumping over points, climbing ladders over corners, and such are really just ideas to circumvent the issue. Unfortunately they serve to exacerbate the problem by further alienating the staunch "property rights" landowners.

 

[James Riley]

. . .where is the wording , statute ,ect. that defines how much property is needed to cross from one property to the other,

This came up before, in the other thread. There seems to be a misunderstanding among some people, thinking that the law must define how much property is needed. No, the law need not anticipate stupidity. If it says "It shall be unlawful to kill another human being without just cause." it is simply no argument to say "Show me where the law says I can't kill another person using poison. If it doesn't say I can't do it with poison then it must be okay."

Forget the method, you can't do it.

Likewise, forget how much property is involved, you can't cross ANY private property without permission. ANY.

If there are any exceptions, they will be provided in law (like the surveyors, or emergency personnel, or assessors, etc.). Thus, if you find an exception that says "Surveyors, emergency personnel, assessors, or Billy Bob or Cletus crossing at a corner to hunt public land so long as they don't put their foot down or damage the private property in any way" then maybe you've got something. Even then, timing of the passage of that law would be relevant.

 

[James Riley]

not alienating me, I am a landowner in 3 states, making sure I understand what constitutes" legal" , also making sure anywhere there is a possibility of me accessing public land, I will do so , making sure any of this "so-so " spots are clearly defined, as of this morning the local warden sent me maps of 4 areas that I have been contending their is access, even though they landowners have harassed me continuously when I am there. his finding is there is public access, but he wont do anything about the paint and signage, " I don't know who put up the signs or paint" his quote, well it wasn't me that signed it illegal but I would bet a dollar the closest landowner knows who did it,,,,

also cant get anyone to write a ticket for hunter harassment,,,,

I'm pretty in Colorado it is illegal to post public land as private. If I am confident about my location, I ignore those signs and will tear them down.

In fact, this S makes me livid. In fact, if you are in my AO, and if I convince myself you are right, then I would be happy to come watch your rig while you hunt. Anyone touches it I will back your hand.

 

[JDH]

I ran into the exact scenario in WY that I believe the OP is talking about.
In a couple of spots there was a T post that was by itself between the fence and the road so I just assumed that was the property marker. I never did any research to see how far the ROW extended from the center of the road or however its measured so I didn't try to access the area from that point.

 

[RobG]

It's simple, really:

1. Don't cross through another person's private property without permission, regardless of how unobtrusive or non-damaging you perceive the crossing to be;

It isn't that simple - I was talking with the Livingston office of the Gallatin National Forest on Tuesday about this. Many landowners are denying that public access ever existed on some trails and roads that lead to public. They "require" permission to gain access, and they give it out freely. However, what they are doing is creating written evidence so that they can claim that permission was always required. That is, that a public easement never existed. So if you have the right to be there, unfortunately, by asking permission you are jeopardizing that right. At the very least don't sign anything.

2. Have your government condemn/eminent domain/force access.

This is an incredibly difficult and expensive thing to do, especially considering the local government officials that would carry this out are probably cousins to the people claiming the public has no easement.

3. Ignore the law.

Which law? The one that says I don't need permission to use public trails/roads with prescriptive easements that go through private lands? Or the one that says I do need permission to use trails without easements that go through on private lands? In many cases the status of the trails is in dispute, therein lies the problem. For corner crossing there is no law that really addresses it in spite of the notoriety of the issue.

I don't know about BLM, but in some cases the National Forest has taken the position that if the road easement touches the public land then you can use it to gain access even if the road itself doesn't touch the public. I've learned to ask the FS about things like this - they have more often than not know exactly the place I'm talking about and they have told me I have the right to access that property even though the landowner is posting it. But be sure and ask the agency in charge first before you just ignore the no trespassing signs.

 

[James Riley]

I ran into the exact scenario in WY that I believe the OP is talking about. View attachment 62653
In a couple of spots there was a T post that was by itself between the fence and the road so I just assumed that was the property marker. I never did any research to see how far the ROW extended from the center of the road or however its measured so I didn't try to access the area from that point.

In many areas if you walk the fence line (or disturbed area along a road in open range) you will find survey markers showing the right of way. Snap a line or eyeball that and then the only question is where the public is. In your scenario, might be worth checking out if that land looks like a place you want to be.

I have that situation a couple of miles from my place and I can get where I want to go walking, but the touch point has lots of cliff and a fence I don't want to cut so I don't bring my horses.

 

[RobG]

I will restate what I think is the most useful thing I've learned - ask the agency in charge (BLM, Forest Service, etc) about the specific place. My experience with the FS here in Montana is that they will have an answer for you on whether or not the landowner has the right to block you.

 

[RobG]

I'm pretty in Colorado it is illegal to post public land as private. If I am confident about my location, I ignore those signs and will tear them down.

I was told by a National Forest law officer that tearing down signs or cutting locks could expose you to a criminal mischief charge that might stick. So use the access if it is public, but be respectful of the property. It is a tough one - you can't post illegally, but they do it all the time around here. Until it goes to court all the landowner has to say is that he doesn't recognize the public's right to access.

 

[James Riley]

It isn't that simple - I was talking with the Livingston office of the Gallatin National Forest on Tuesday about this. Many landowners are denying that public access ever existed on some trails and roads that lead to public. They "require" permission to gain access, and they give it out freely. However, what they are doing is creating written evidence so that they can claim that permission was always required. That is, that a public easement never existed. So if you have the right to be there, unfortunately, by asking permission you are jeopardizing that right. At the very least don't sign anything.


This is an incredibly difficult and expensive thing to do, especially considering the local government officials that would carry this out are probably cousins to the people claiming the public has no easement.


Which law? The one that says I don't need permission to use public trails/roads with prescriptive easements that go through private lands? Or the one that says I do need permission to use trails without easements that go through on private lands? In many cases the status of the trails is in dispute, therein lies the problem. For corner crossing there is no law that really addresses it in spite of the notoriety of the issue.

I don't know about BLM, but in some cases the National Forest has taken the position that if the road easement touches the public land then you can use it to gain access even if the road itself doesn't touch the public. I've learned to ask the FS about things like this - they have more often than not know exactly the place I'm talking about and they have told me I have the right to access that property even though the landowner is posting it. But be sure and ask the agency in charge first before you just ignore the no trespassing signs.

I said it was simple; I did not say it was easy.

1. It is simple. If there is an easement, it should be recorded. If it's not, then record it. Either way, in the case you describe, an easement exists, right? Then exercise your rights. Simple. An illegal land owner is no different than an illegal trespasser: they are both illegal. Follow the law.
2. Agreed. Not easy, but simple. If you want access where you don't have a right to it, your government can force and pay for it.
3. Ignore the law that says you can't trespass through another's property without permission. There is a law that really addresses corner crossing. It is that law. You can ignore it like a thief, or you can ignore it notoriously and test it.
4. I would say it is the road easement that controls, not the road itself. The only exception would be if the easement itself is limited, in which case the limit would be recorded and the USFS would know.

 

[James Riley]

I was told by a National Forest law officer that tearing down signs or cutting locks could expose you to a criminal mischief charge that might stick. So use the access if it is public, but be respectful of the property. It is a tough one - you can't post illegally, but they do it all the time around here. Until it goes to court all the landowner has to say is that he doesn't recognize the public's right to access.

I wouldn't care too much what the USFS said. It's a state law that makes it illegal and if it's posted illegally I'll take it down and S on it. If I'm prosecuted, all the better. I will win. If the landowner say he doesn't recognize the public's right to access I will say "Charge me with trespassing and/or criminal mischief and I'll see you in court. I don't recognize your right to sign out public property."

Now, if you don't have that state law, then leave the sign up and ignore it; cross over the top of it and go hunting. Or put up your own sign next to it, with an arrow pointing at it that says "Bull Shit, ignore this sign". If the land owner messes with your sign, charge him with criminal mischief. If there is a lock, cut it.

 

[James Riley]

I will restate what I think is the most useful thing I've learned - ask the agency in charge (BLM, Forest Service, etc) about the specific place. My experience with the FS here in Montana is that they will have an answer for you on whether or not the landowner has the right to block you.

That is the nice way, and strongly recommended. I agree. But I've known USFS personnel who tried to discourage me (not in a friendly way, either) from using a certain part of the Comanche National Grasslands because rancher friends would take me if I tried. I was so pissed that a USFS person was saying this (and the way he said it) that I didn't even think of telling him to go get his supervisor so I could tell him what the idiot was saying. Besides, he would have walked it back and winked at me. I told him I'll go anywhere it is legal for me to go and anyone who tries to stop me will have their hands full.

 

[MTGomer]

Do your research in the county courthouse or BLM office of what the easement/ROW encumbrances are, where they're located etc.
You may find a survey-grade ROW strip map, with ROW tied to PLSS corners. This can give you a clue as to what type of overlap exists, and may state if a monument is present. If there is, try to find it. Then you'll know exactly where the corner is, and can figure out if you can legally cross

As for posted public land, I think its ridiculous that people post it, but I never tamper with their signs. It kind of gives those of us willing to do our research a bit of advantage.

Kind of a different issue, but I have several times ran into landowners that decide not to issue permission on their type 2 BMA, so I just go hunt the legally accessible federal land contained within it. There are a few of them that just can't get through their heads, even though it says right on the BMA map, that I CAN hunt on legally accessible federal lands and that said lands are not under jurisdiction of the BMA rules.

 

[RobG]

James - I'll give you an example. There are trails around the Crazy Mountains that have been used for more than 100 years. They are shown on current forest service maps. Nonetheless, landowners are claiming the public has given up any easements to them because the public hasn't been using them (something very difficult to prove either way). They have posted the trails. Some deny access altogether, others require you to sign in. The forest service claims they are public, but they don't have the budget to prevent the landowner from posting it or gathering written permission to use it or bring it to court. Access groups like PLWA don't have the resources to fight more than a couple battles at a time. So they remain unsettled. That actually seems to be the norm around here.

Compounding the problem is that with contested access the public are even less likely to use them. The trails become hard to find, which further bolsters the landowner's claim that it isn't being used by the public.

This is an interesting topic that I've just started learning about. Not enough people are doing much about it and perhaps I can find enough time to help correct the situation. This might be a case where the Forest Service needs to be sued to get them to do their job of clearly asserting the right of the public to use this trail.

 

[Sytes]

BLM website:
http://www.blm.gov/mt/st/en/info/access.html

Most public lands administered by BLM are open year round to public use. The public can use these lands for recreation unless the lands have been officially closed to fire danger or other emergency hazard.

Public roads, thoroughfares or waterways may be used to gain access to public lands. The public cannot cross private lands to reach public land if no public thoroughfare exists. The landowners permission must be obtained before crossing private lands to reach public lands.

Leasing does not alter or restrict authorized public use; therefore, lessees cannot maintain locked gates, signs, or other devices on public lands. Some lessees participate in a formal program in which BLM lands can be closed to public use IF a corresponding amount of private land is made available to the public. Such lands must be clearly posted with open and closed signs. Any questions should be referred to the appropriate field office.

Access Information for Montana

Surface ownership patterns in Montana are highly fragmented, and access to public land managed by the Bureau of Land Management can be difficult in some cases. Where there is legal access, lands are open to the public. BLM field offices across Montana have copies of maps, information on specific recreation opportunities such as camping, fishing, snowmobiling, or hunting, and information on land ownership and laws regarding land use.