There has been quite the debate in our country over the public's right to use certain portions of land. One company may have owned a parcel of property for a significant amount of time that snowmobilers used to access trails. That company may have sold the parcel to another party, and the land was subsequently closed off. This leaves many outdoor recreationists up in arms because their much-loved trails are no longer accessible. So what's the avid thrill seeker to do? With the right set of facts, they may well have a claim against the new owner for a prescriptive easement.
Prescriptive easements in this scenario are also known as public rights of way by prescription. The elements necessary for this claim are: (1) open, (2) exclusive, (3) notorious, (4) adverse, and (5) continuous use for five years. See Shors v. Branch, 221 Mont. 390, 720 P.2d 239 (1986). Have you and your friends been consistently using a trail or road for over five years without permission or objection? Have you made improvements to the road or trail without express permission from the owner? See Rasmussen v. Fowler, 245 Mont. 308, 800 P.2d 1053 (1990). Are you now blocked from using it because of a newly built gate or fence? If so, you may meet the elements necessary to claim a prescriptive easement on the property.
Know your rights. Objecting when a large corporation blocks access to historically used trails is intimidating. What is more intimidating is deciding that nothing can be done without first seeking counsel, and being left without a remedy. The attorneys at diStefano & Mattingley are well versed in property law. Set up a consultation today, because avalanches, not gates, should be the only thing keeping you off the trails this winter.