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The Explainer: Getting from here to there

  • By Charles Pelkey
  • Published Jan. 6, 2011
  • Updated Jan. 9, 2011 at 8:40 AM EST

Q.Dear Explainer,
I’ve appreciated all of your coverage of car-bike problems over the past few months, but I have to admit that the news of those stories, along with others I see in the papers, has made me wary of spending too much time out on the roads.

Instead, I have taken to riding my bike off-road, using my mountain bike and ‘cross bike to get a little solitude and to stay the heck away from traffic. But that solution has proven to be only temporary.

I live in central Washington state. For years, riders, hikers and a few moto’ heads have used a trail to ride straight from town up to a network of trails at a nearby state park. Last week, I was chased down by a guy riding an ATV who screamed at me and said I was on private property and then even tried to take away my bike. After arguing for 20 minutes, I managed to get out of there with my bike, but he threatened to charge me with trespassing (how he’ll pull that off without knowing who I am, I’m not sure).

From the looks of it, the property is only one small chunk of private land, surrounded by public land, but getting around it is impossible. His is the only route we’ve used. The local land use maps show a mix of public and private land all over the place and even more difficult alternatives, with steep and rough trails, cross over private land on the way to the park.

Now, we’ve been using those trails for years … probably for at least 20 or so. Now the owner (I think he just bought the place a year ago) is putting up fences and signs and we’re pretty much forced to drive to the park to ride the trails (which goes against the whole idea of going for a bike ride in my book). Is there a way the cycling community can claim that the owner has given up a claim on the trails, since no one seemed to care that whole time?
Frank

A.Dear Frank,
I’m not exactly sure where in Washington you live, but I am going to guess that there is (or was) a railroad line in the vicinity. At least your situation is one a lot of us in the West face, because of land ownership scheme known as “checkerboarding.”

Go west young man

The guys in the suits owned a lot more than a narrow strip of rail.

Let’s start with a bit of history. My guess is that you can thank (or blame) ol’ Honest Abe Lincoln for your situation.

While it’s hard to imagine now, when you see massively crowded cities in Colorado, California and in your state of Washington, back in the mid-19th century, the government was really trying to figure out how to populate the vast expanses of the United States west of the Mississippi. Though the stuff of legend, those wagon routes that crossed the west on the Oregon, Sante Fe and other trails really didn’t bring a lot of people out to the frontier. Recognizing that a trans-continental railway would ramp up westward expansion, the government offered huge incentives to that industry.

Congress passed, and Lincoln signed, the Pacific Railroad Acts of 1862 and 1864, two schemes that ultimately gave away huge tracts of federal land to anyone building a rail line in the West. How huge? Over the course of the construction of the transcontinental railroad, the government gave away about 40 million acres of land to the railroad companies, in a checkerboard of alternating one-mile-by-one-mile squares of public and private land that first extended 10 miles (under the 1862 Act) on either side of the tracks. Under the provisions of the 1864 Act, that was extended to 20 miles. That’s why, for example, the Union Pacific was the largest land owner in my part of Wyoming. It’s also why we still face many of the same land-use issues you’re facing up in your part of the world.

The root of the problem

Since the original land grants were issued, of course, the railroads found fun and profit in selling off those lands, some to ranchers and farmers, some to local communities hoping to expand their borders and others to mining and timber companies. Some of those lands were sold off in their entirety, while others were sold off as “split estates,” in which the buyers purchased only the surface of the land, while the railroad retained the subsurface mineral rights (which is why my wife’s family felt no joy when geologists found diamonds near her land).

Anyway, so you’re situation isn’t all that unique, and it’s one that doesn’t always offer an easy solution.

Is there an easement?

Your core question is really whether the land owner is now obligated to allow continued access to land via a route that has been used by recreational users for nearly two decades.

What you’re asking about is whether there is an easement — the right to use another’s property without actually owning it — that would offer access through the private landowner’s property.

The first thing to do is to go to your county clerk’s office and look up the deed covering that piece of property. It could be that a former landowner actually did once grant a recreational access easement. That easement “runs with the land,” meaning that even though a former owner sold the land to a new owner, the easement is part of the deal. If that’s the case, you’re golden. A new landowner can’t even claim ignorance of the existence of the easement, since it’s recorded as part of the deed … and, hey, if you found it, then he should have when he bought it.

Such an easement can be terminated in several ways, including release (the beneficiary agrees to terminate his rights), expiration (there was a time limit on the easement) or abandonment. Neither of those would appear to be the case in your situation.

Now, the reason I suggest that there might already be an existing easement in place is because government entities in the western U.S. have long been aware of access issues related to the aforementioned checkerboarding. Many state and local governments have in the past offered incentives to land owners, in the form of tax breaks, in order to encourage them to allow non-motorized access to public lands. Generally, governments negotiate a deal in which the owner will permit those hoping to reach a piece of public land to cross that piece of private land via a narrow and defined route. It may be that the former owner of the land negotiated such a deal and the current owner is still benefitting from it.

As I mentioned, though, that access is generally limited to non-motorized modes of transportation — foot, bike, horses and even skis — and the “few moto’ heads” you mentioned may be at the root of the problem.

If there isn’t an easement

Now, let’s assume that there isn’t an easement. Can you claim access based on past use? Probably not.

There are cases in which governments mandate access to public lands. Often that involves a public path to an ocean beach or to a publically owned lake, surrounded by private property. In this case, we’re probably dealing with a land-locked issue and we may not be able to exercise that option.

There are other principles in Property Law — easement by prescription, easement by necessity and easement by prior use — but those generally involve issues between private property owners whose land was once held in common.

Take for example the idea of easement by necessity. Let’s assume you’re trying to access a piece of public land that is completely surrounded by private land. You — and the rest of us — are the “owners” of that public land. Crossing that private land is necessary for us to access our property, right? Logic would then dictate that you could attempt to access that property by asking a court to issue an easement by necessity. One can claim an easement by necessity, based on the argument that when a party sells (or gives away) property, the seller transfers what is necessary for the use of the sold property, and keeps what is necessary for the use of the property the original seller still owns. Logic would dictate that access is probably the most necessary element one must have to be able to use that land.

But courts have held that that required common past ownership doesn’t apply when the original owner was the government. In other words, we can’t claim access to public land, even if the surrounding private land was once owned by the public.

You might, based on your (the recreation community’s) continuous use of the trail, see if you can try to ask the court to declare a prescriptive easement, but I think the chances are pretty slim on that front. A prescriptive easement is essentially the same thing as what’s known as “adverse possession,” meaning such past use could allow you to claim “ownership” of the right-of-way simply by having crossed the land continually for a defined period of time. The legal test to acquire a prescriptive easement of another’s property is that the use has to be “open, notorious, hostile and continuous.”

In non-lawyer-speak, that means that you have to be obvious about crossing the land, which all of you appear to have been, doing so without the owner’s permission (you need to check that) and the use has been going on for a long time (depending on the state’s rules). The problem is that in some states, the temporal chain of continuous use can be broken by the sale of the property, which would start the clock over again. Again, all of these rules vary by state and there is a big question as to whether prescriptive easements apply to issues of access to public land. It’s a good idea to get a lawyer involved if you can.

What are your options?

So, if there isn’t an existing easement and you can’t force your way into having access, what can you do?

Well, the first thing is to try and calm the waters. It may be a good idea to work with established recreational and public lands access groups in your area. Some that immediately spring to mind are The Public Land Trust, our old friends at IMBA and hunting and fishing groups like Trout Unlimited.

Many such organizations have experience with access issues and have staff and volunteers who have negotiated such easements before. That doesn’t mean that you can solely rely on their efforts, though, and it will take local riders, runners and others to lend a hand.

Put together a group of interested people and do your homework. As I mentioned before, start by checking the status of the land at issue. Check to see if there is an existing easement and, if you have a lawyer or someone interested in the subject, research local laws and rules governing access and property rights.

Check to see if there are tax incentives available to land owners. That may be all you need to sweeten the pot. If not, you may have to raise some funds, either to buy a stretch of land outright, or to at least purchase the recreational access easement.

No easements by necessity in Wyoming?!?!? D'oh!

A word of warning here. This is not my area of specialty and rules vary from state to state, too. Indeed, I went into great detail about easements by necessity on the essay portion of the Wyoming Bar Exam only to remember on the drive home that our own Supreme Court had ruled in 1991 that such easements aren’t even an option in this state. D’oh!

Ongoing responsibilities

Finally, should you succeed at all of that, you may need to keep your group of interested people together to help monitor the use of the easement. As I mentioned, most recreational easements of that type exclude motorized users. In my book that’s a good thing. Work with the land owner to develop means by which access can be limited.

Furthermore, the easement may involve a narrowly defined route. The beneficiaries of such use should do their best to monitor the route and ensure that riders, hikers or anyone else is not straying from the path and damaging property along the way.

Keep in mind that many large property owners in the West are ranchers. Work with the owner to respect their cattle and sheep operations. On land like that, self-closing gates and other tools may be necessary to minimize disruption. Those are costs that you, as a group, may ultimately have to bear.

Above all, try to be polite and courteous. Try not to trespass while you’re considering your options regarding the land in question. The owner has rights that have to be respected. The more folks do to piss-off landowners prior to the acquisition of an easement, the less likely negotiations are to succeed. Meanwhile, given your own encounter with the land owner, you might want to take on a behind-the-scenes role and leave the face-to-face negotiations to someone else.

Good luck and let me know how it goes,
Charles


“The Explainer” is a regular feature on VeloNews.com. If you have a question feel free to send your query toCPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.

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