VikingsGuy
Well-known member
They got a right of way (ir possibly title) for the tracks (and some distance to the sides of the track too) in addition to the checkers.
Corner Crossing
- Thread starter mstolte
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VikingsGuy
Well-known member
Because before WW2 the majority of trespass law was developed by common law and not legislation- and there are various common law rulings about “vertical” trespass. And the way common law works the cases don’t necessarily need to be in that given jurisdiction.
Hunting Wife
Well-known member
They have title generally, at least everywhere I’ve worked on lands with RR crossing it. Decommissioned tracks are still private land. They occasionally get donated back to us when they cross our parcels.
El Jason
Well-known member
Welcome back. Did you get paroled or will you get axed for sneaking back in after getting banned?
Yes, this would certainly happen in some cases but if they made a decent attempt say $10,000 for a six foot easement with no motorized traffic it might be enough of an incentive for many of these landowners to agree to it. Some of the larger ranches at $40,000 per 4 cornered section would come out well. If it passed the legislature the landowners wouldn’t have much say but would probably be best to first look at the volunteers and best practical easements for maximum public benefit. If 100,000 sportsmen in Montana paid just $50 per year to access public lands the funds would go quite a long ways along with state and federal funding it could grow even bigger. What is your idea?
VikingsGuy
Well-known member
For those who really want to geek into this topic . . . (god I really wanted to type , , , for @wllm1313's sake, but it irritates me too)
Roman Law stated, "cujus est solum ejus est usque and coelum" (a land owner controls from heaven to hell). English law picked this up by the time of Henry I, but those in the know at the time called it "Lord Coke's ad coelum doctrine", see, Blackstone circa 1766. This approach rendered lawful corner crossing a physically impossible task.
The US adopted this principle generally as it incorporated English common law as a basis of our own - so, in 1776 corner crossing in the 13 states was effectively trespass. Various states took twists and turns along the way, but was a minor area of interest until air travel pushed the point.
In 1946 a federal "takings" case, SCOTUS (US v Causby) proclaimed that all "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority" is public domain. In that case, I think the elevation in question was 83ft - but they declined to prescribe a specific boundary and subsequent cases seemed to gravitate to 500ft. Various states began using the Causby case reasoning to reign in vertical rights more generally, but not all.
As it relates to "stepping over" a corner - it remains gray in most places, but if a client asked me this question I would suggest that until you can point to a specific statute or precedential case in your state of interest then you must assume that corner crossing by foot (or pole vault) will start with a presumption that it is trespass.
Where such clear case law or legislation doesn't exist, the path to resolution is either directed litigation in the hopes a state court goes the way of SCOTUS in 1946 and just throws the old out the window, or specific legislation to reverse traditional common law.
But this is just the formal restatement of the law - whether someone chooses to follow it or not, finds the risk too great or di minimus, relies on local culture and relationships, or local/state officials actions/inactions/statements, etc will cause each hunter to reach his/her own conclusion of what to do.
As an aside, Causby is a good reminder of how "it's always been that way" arguments can rest on quick sand. For over a thousand years and across multiple countries, incl. in the US since its founding, the law was clear - from heaven to hell. But in one case in 1946 SCOTUS declared this centuries-old precedent "[had] no place in the modern world". And that was that. At least as it related to airspace needed for air travel.
Roman Law stated, "cujus est solum ejus est usque and coelum" (a land owner controls from heaven to hell). English law picked this up by the time of Henry I, but those in the know at the time called it "Lord Coke's ad coelum doctrine", see, Blackstone circa 1766. This approach rendered lawful corner crossing a physically impossible task.
The US adopted this principle generally as it incorporated English common law as a basis of our own - so, in 1776 corner crossing in the 13 states was effectively trespass. Various states took twists and turns along the way, but was a minor area of interest until air travel pushed the point.
In 1946 a federal "takings" case, SCOTUS (US v Causby) proclaimed that all "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority" is public domain. In that case, I think the elevation in question was 83ft - but they declined to prescribe a specific boundary and subsequent cases seemed to gravitate to 500ft. Various states began using the Causby case reasoning to reign in vertical rights more generally, but not all.
As it relates to "stepping over" a corner - it remains gray in most places, but if a client asked me this question I would suggest that until you can point to a specific statute or precedential case in your state of interest then you must assume that corner crossing by foot (or pole vault) will start with a presumption that it is trespass.
Where such clear case law or legislation doesn't exist, the path to resolution is either directed litigation in the hopes a state court goes the way of SCOTUS in 1946 and just throws the old out the window, or specific legislation to reverse traditional common law.
But this is just the formal restatement of the law - whether someone chooses to follow it or not, finds the risk too great or di minimus, relies on local culture and relationships, or local/state officials actions/inactions/statements, etc will cause each hunter to reach his/her own conclusion of what to do.
As an aside, Causby is a good reminder of how "it's always been that way" arguments can rest on quick sand. For over a thousand years and across multiple countries, incl. in the US since its founding, the law was clear - from heaven to hell. But in one case in 1946 SCOTUS declared this centuries-old precedent "[had] no place in the modern world". And that was that. At least as it related to airspace needed for air travel.
RobG
Well-known member
And then the lawyers come in and argue about what the law is specifically saying.
VikingsGuy
Well-known member
I would build a coalition of public land users and advocates (broader than just hunters) and have congress legislatively grant the public walking easement to access all land-locked federal lands. The takings "value"/"cost" of this law would be quite small as SCOTUS has already dismissed the consideration of any value of the land associated with blocking access to the very federal lands the easement is taken for. So what is the value of a walking path easement on a 3 ft wide "notch" at a corner in a distant sage field where the value of the access to the land beyond is not allowed to be considered - a very small number I would say.
Dakotakid
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Either way, it’s a lawyers jobs bill.
Eminent domain for 1000s of properties is going to put lawyers to work.
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It's really pretty simple:
- Trespassing is, by the law, illegal. Nobody challenges that. So the law itself is clear.
It's the definition of trespassing, with direct respect to corner crossing, that is debatable. If you cross EXACTLY on a corner, you are actually in 4 places at once. So, you are both trespassing and not trespassing, at the same time. so when that happens, what wins? Personal property rights, or public property rights.
Dakotakid
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Well said.
JM77
Well-known member
Without clearly spelling out corner cross or ownership above ground (air space) in relation to trespass, no judge or jury will find someone guilty of trespass for corner cross, because it is not. As to common law, that is a stretch at best. In fact, the Kearney case in Wyoming and the Cherry case in Montana prove what I am saying. Please show me evidence to the contrary.
On the civil side, what damage can a landowner prove in court due to corner cross? Would it be their sharing of adjacent public land compared to the sole use of it?
What baffles me the most, and I'm assuming most on here are hunters and public land users, is how several of you look for excuses not to use public land via corner cross. That's fine and is your choice, I understand and you have every right to it. But it still baffles me! When I look across that corner all I see on the opposite side is public land, and elk and deer and antelope.
Here in Wyoming, we look for possibilities to get the corner cross ticket and it never happens. Time after time, rumor after rumor, it never happens (Actually it did once and that ticket was in the trash can in under 24 hours). Up until last year, although I have corner crossed many times, I had never packed meat back across a corner. This bull changed that.
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VikingsGuy
Well-known member
While I agree lots do it, and apparently politically DAs in WY seem reluctant to charge, the common law is the primary foundational way all of our laws (even statutes when it comes to interpretation) are governed - it’s not some esoteric relic. In most states the burden will clearly be on the accused trespasser to change centuries of law. Not to say they won’t (see, Causby), but the common law is the law, not a mere suggestion or history lesson.
Again, all kinds of folks ignore all kinds of laws - to each there own - but that doesn’t mean it isn’t the law.
RobG
Well-known member
One good excuse is that if you get a ticket you are going to get stuck with attorney fees even if it isn't prosecuted.
JM77
Well-known member
Why would you get stuck with attorney fees? You could just pay the ticket(if you ever got one) or fight it at the lower court level. In Wyoming, we want to lose at the lower court level so it can be appealed. If that ever happened, donors are lined up to contribute to the cause.
VikingsGuy
Well-known member
Make sure you pay the costs (or get pro bono) to get really good counsel at the lower court, as that sets the record the appellate court is limited to rule on. I have seen many folks lose an appeal they should have won due to errors and oversights by counsel at the lower court.
Dakotakid
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And could lose the game animal.
If trespass to get the animal it is unlawfully possessed…
JM77
Well-known member
Nope. As far as Title 23 violations(game and fish) a previous AG in Wyoming determined that corner cross does not show intent to hunt private land. Animal is perfectly legal.
Dakotakid
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Did you ask about Wyoming?
VikingsGuy
Well-known member
And that’s great until a new AG thinks different. Those opinion letters are not binding on future AGs.
