MT law concerning fence crossing county road ??

twodot

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Question has come up concerning a wire gap fence that crosses a County road.

The question is, "is one required by law to close such a gap when passing through"

Not interested in any of the old, "my daddy always told me to leave em like I found em"
or any of that other type of stuff that we all know.

What does MT State law say about this? We have heard so many conflicting reports from law enforcement and locals that it is time to find the truth. Even had one sheriff tell me that he would never close a gap on an actual county road.

I have looked into this somewhat and find in the Fergus county's road site a very good description of a legal fence crossing a county road, but am having a hard time finding a State outline of such a thing. or any written description of legal fence crossing roads in the particular county in question.

A second and third question will of course be,
"is it a crime to not close a wire gap crossing a county road?"
and
"is it a crime to construct a wire gap crossing a county road?"

Remember, no "local custom says" just the actual law please, and no talk of "gray areas"
Thank you
 

Topgun 30-06

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Cattle guards are usually what is used for places like you're talking about. I've near seen a gap gate used at a county road anywhere I've been in Wyoming. However, I have seen them lots of places on BLM land. The only time I can think of where one might be used where you're talking about is if someone was moving animals across that road through a gate and closed what you're talking about to keep them from going up or down the road. Again, I would think a cattle guard would probably be placed there if much was going on like I mentioned.
 
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twodot

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Topgun, While I totally agree with with your thought that a cattle guard should be in place, you are going to have to be dis-qualified for not giving LEGAL chapter and verse. Sorry about that, this is MT and common sense does not always rule.
A bit more background, gap is crossing a County Road, on BLM land, and road is the public entrance to a Federal Wildlife Refuge. The fence is between a private ranch and a BLM grazing area. (or as we here may prefer to call it,"a BLM citizens use area".

Sorry about the DQ, just the law please. Try again.
 

Topgun 30-06

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Although there are no actual statutes listed in the link I'm posting it sounds like what you're asking falls under a paragraph talking about most of Montana being considered open range and the private property owner is responsible for keeping his stock off the adjoining pubic land. That would be done by a cattle guard or a gap gate like you have run into and that gate would have to be kept closed at all times that stock would be present to keep them on the private property. There is nothing in the link to show if a person is in violation for not closing the gate, etc., but that's the best I can find through a quick search and that means you'll probably disqualify me again, LOL!

https://www.msuextension.org/forestry/Resources/pdf/BSSALivestockFencingLaws_Mosley.pdf
 
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twodot

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You are of course, dangerously close to your second DQ here. We are however, looking into any possible information that we can use to get to the bottom of this, and this will be considered, for now as a stepping stone to our answer. Some small thanks is due. thank you
 

Bambistew

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Not a clue... but make sure you're talking about a ROW, and not an easement. They may have separate requirements. It could still be a county road in both instances, just depends on who owns the ground. I've worked on projects where a public road runs across a federal easement, different rules apply, same goes for private...

Another thing I just thought of... The county could be maintaining the road, but not necessarily own it. I've seen privately own roads maintained with public funds, due to a swap of some sort somewhere else.

Good luck. I'd be interested to know as well.
 
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twodot

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Good point about the Easment potential there Bambistew.
According to the local county road superintendent, several local ranchers, maps and the sheriff, it is indeed a county owned and somewhat maintained, (when they feel like it) road.
Getting closer, thank you.
 

twodot

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Thank you belly-deep. I don't really see where any of that would apply in this particular situation.
But we are getting closer. keep em coming.
edit, maybe line D in your posted link is part of the answer. But what if said gate is not legal in the first place?
thanks again.
 
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katqanna

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7-14-2130. Control of the movement of livestock on or near county roads. (1) Cattle guards, appurtenances, and gates may be constructed and maintained adjacent to county roads.
(2) Where a county road connects with a state or federal highway which is fenced on both sides, the board of county commissioners may construct and maintain extensions of the fence across the right-of-way of the intersecting county road. The board shall construct a pass which will permit passage of vehicles but will prevent loose livestock from passing onto the state or federal highway. In the extensions of the fence, there shall be maintained a gate to permit the passage of livestock and vehicles.
(3) Each board may construct on county roads passes which shall permit the travel of vehicles but which shall prevent the passage of loose livestock. Where necessary, gates shall be maintained to permit the passage of livestock. Such passes may be removed when, in the judgment of the board, the need therefor no longer exists.

45-6-101. Criminal mischief. (1) A person commits the offense of criminal mischief if the person knowingly or purposely:
(a) injures, damages, or destroys any property of another or public property without consent;
(b) without consent tampers with property of another or public property so as to endanger or interfere with persons or property or its use;
(c) damages or destroys property with the purpose to defraud an insurer; or
(d) fails to close a gate previously unopened that the person has opened, leading in or out of any enclosed premises. This does not apply to gates located in cities or towns.
(2) A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and amount of restitution after full consideration of the convicted person's ability to pay the restitution. Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered must be made prior to the release of state jurisdiction over the person convicted.
(3) A person convicted of the offense of criminal mischief shall be fined not to exceed $1,500 or be imprisoned in the county jail for any term not to exceed 6 months, or both. If the offender commits the offense of criminal mischief and causes pecuniary loss in excess of $1,500, injures or kills a commonly domesticated hoofed animal, or causes a substantial interruption or impairment of public communication, transportation, supply of water, gas, or power, or other public services, the offender shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.
(4) Amounts involved in criminal mischiefs committed pursuant to a common scheme or the same transaction, whether against the public or the same person or several persons, may be aggregated in determining pecuniary loss.
(5) A person convicted of or who forfeits bond or bail for committing an act of criminal mischief involving property owned or administered by the department of fish, wildlife, and parks shall forfeit any current hunting, fishing, or trapping license issued by this state and the privilege to hunt, fish, or trap in this state for at least 24 months from the date of conviction or forfeiture.

I did some research for a videographer this fall that wanted to know laws of what his rights and responsibilities were, I had these in the file, plus the fencing by county roads and bridges, again for livestock, but in relation to stream access.

23-2-313. Fencing for livestock control and public passage -- negotiation -- costs. (1) At county road bridges for which public access is authorized pursuant to 23-2-312, each fence attached to or abutting a county road bridge edge, guardrail, or abutment for livestock control or for property management pursuant to 7-14-2134(4) must provide for public passage to surface waters for recreational use pursuant to this section.
(2) (a) If a dispute arises regarding public passage pursuant to subsection (1), the department, pursuant to the department's policy in 87-1-229 to work with private land managers to resolve and reduce user conflicts, shall negotiate with the affected landowner regarding the characteristics of an access feature of a legal fence for public passage and livestock control or property management. Examples of an access feature of a legal fence that provides public passage and livestock control or property management may include:
(i) a stile;
(ii) a gate;
(iii) a roller;
(iv) a walkover;
(v) a wooden rail fence that provides for passage; or
(vi) any other method designed for public passage and livestock control or property management.
(b) One access feature, as described in subsection (2)(a), on each side of the stream is sufficient. When practicable, one access feature must be located on the downstream bridge edge, guardrail, or abutment. The department may waive these provisions when one access feature is sufficient.
(c) If the landowner and the department cannot reach agreement within 60 days after the department's initial contact with the landowner for negotiation, the department shall provide the landowner with options for methods to provide public passage while controlling livestock or managing property. If the landowner does not choose one of the method options within 30 days after the options are offered, the department shall choose and then may install one of the method options.
(3) The department, in cooperation with other interested parties, shall provide the materials, installation, and maintenance of any fence modifications necessary to provide public passage as required by this section.
 

twodot

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The legal ramifications of shutting or not shutting a gate are well established here, but now how about the legality of placing a gate where is crosses a county road/ Is that allowed, or is a cattle guard required?
 

JMG

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Twodot,

Since I don't believe there is a law, guideline or regulations that will answer your question. The "legal" question should be directed to the County Attorney's office and/or the Attorney General for the State of Montana (see link). If the County Attorney cannot or will not give you an opinion, then I would contact the State Attorney General's office. To be honest, I would contact both anyways. And make both aware that you are soliciting an opinion from the County and the State, because you are not getting an answer to your question. This way it doesn't make you look like your are running to "Dad", becasue you didn't get the answer you wanted from "Mom".

https://dojmt.gov/agooffice/

I would explain in detail the current situation and await (long wait) a response. The sources listed on the bottom of the website, may help you.

One more option, if I understand you correctly, this road may provide access to Federal land . . . . is contact the Field Solicitor's Office (SOL) for the United States. There number is 406-247-7583.

Good luck. :)
 

katqanna

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The legal ramifications of shutting or not shutting a gate are well established here, but now how about the legality of placing a gate where is crosses a county road/ Is that allowed, or is a cattle guard required?

Twodot, per the 7-14-2130 and the preceding MCA in that section of Local Government>Transportation, the jurisdiction for any fences and gates on county roads is under the county commission and any road board they may establish. I agree with JMG, begin with the County Attorney.

I have to run a friends dog to the vet for a dip, but when I get back, I will look at a fencing thing Legislative Services sent me in the late summer when I was looking into some fencing issues. As well as a recent issue with a man setting a gate up over a county road, blocking access that also led to DNRC land. He had done that before, both times the county made him remove them, they were not authorized and obstructed passage. Have to run.
 

hank4elk

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Sounds like Catron County and our open range rules,only you have some.
It's also open & CC here.....
 

twodot

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Thank you all for the good information provided here.
I posted that question and then left home on a job. Now back and catching up on the past couple of weeks. Again, thank you, twodot.
 

Ben Lamb

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Sorry, was not paying attention to much the last few weeks. :)

Check with County Attorney, as others have said. They should have the answer.
 

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