Not everyone understands
the Prescriptive Easement process currently involving the Crazy
Mountains or the covert attacks to prevent our Federal public
land managers from being able to perfect a historic prescriptive
easement for public and agency access nationwide. Certain privatizing
landowners and PERC are trying to make this out to be a private
property "taking" by the Public, it is not. Just the
opposite, prescriptive easements involving public lands are
a protecting of the historic public access from a private taking.
Historic use law recognizes historic legal access.
There are examples, here
in Montana, of historical prescriptive easements being perfected
legally, due to an obstruction of access: one
private landowner and another, a
private landowner and a federal agency, a
private landowner and a utility co., for example.
So here are some Prescriptive
Easement basics, which I will flesh out better shortly.
- Adverse possession is a method of acquisition
of title to property by possession for a statutory period under
certain conditions. Adverse possession is statutorily addressed
70, chapter 19, part 4, MCA.
- "A prescriptive easement is a form
of adverse possession. However, a prescriptive easement provides
only a right to use the property of another for a limited purpose."
- "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." 1
- Only one Montana statute specifically addresses
prescriptive easements. Section
23-2-322(1), MCA, "1) A prescriptive easement is a
right to use the property of another that is acquired by open,
exclusive, notorious, hostile, adverse, continuous, and uninterrupted
use for a period of 5 years."
- "An easement is a nonpossessory interest
in land, and therefore, it cannot be created, granted, or transferred
except by operation of law, by an instrument in writing, or
by prescription." 1
- In the case of a Federal public lands managment
agency, "If the Court decides that a right has been establistred,
it becomes a property right to be held until relinquished by
the U.S. The
U.S. would acquire a right to the extent of historic use onIy.Therefore,
it is important to establish what was the extert. of'historic
use'. Maintenance records are a must in proving our case."
- "In situation where an existing NFS
trail crosses private lands, and no deeded easement exist, the
Forest Service position is as follows: The United States has
acquired a right-of-way from the trail
through development, maintenance and continuous use of the trail.
As a matter of law, the Forest Service believes that there is
a public access easement for the trail. The Forest Service is
a beneficiary of this public right of access, will continue
its efforts to defend the public's right of access." 3
Wildlife & Habitat
been in the Crazy Mountains?
you have been in the Crazy Mountains...
you received a citation
when you were on a FS Trail on their map;
you have been on one of these contested
trail and you thankfully did not
ask landowner permission or sign in
and would like to add your account to the
prescriptive easement history;
you would just like to share your story
and/or some pictures of what these particular
public lands and access mean to you?
If so, please
contact Kathryn :
Mountain Public Access Page
I beg you to show the
same level of defense for our public access and Alex
Sankiewicz's reinstatement as Yellowstone District Ranger,
by raising your concerns to the same officials that
the privatizers just did with false allegations. Because
when you see the roll out of information to come and
the players agendas, you will agree, this isn't just
about one man and his job, it is about what he was doing
as a steward of our public lands that others greedily
desire for their own.
Agriculture, Sonny Perdue, U.S. Department
of Agriculture, 1400 Independence Ave., S.W., Washington,
DC 20250 (202) 720-2791
Chief, Thomas Tidwell, email@example.com (202)
Region 1, Regional
Forester Leanne Marten, firstname.lastname@example.org (406)
National Forest Supervisor Mary Erickson, email@example.com
Daines, firstname.lastname@example.org (202) 224-2651
Even though Sen. Tester
was not evident in the letters, please contact him as
Sen. Jon Tester, email@example.com
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