There has been quite the debate in our country of the right of the public 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 leads to the dilemma of many disgruntled outdoor recreationists now 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 prescriptive easement.
Prescriptive easements in this scenario are also known as public rights of way by prescription. The elements necessary to be satisfied for this claim are as follows: 1) proof of open, 2) exclusive 3)notorious, 4)adverse, and 5)continuous use for 5 years. See Shors v. Branch, 221 Mont. 390, 720 P.2d 239 (1986). Have you and/or your buddies 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 off from the use because of a newly constructed gate or fence? If so, you may meet the elements necessary to pursue a claim of right to prescriptive easement on the property.
Know your rights. Objecting to a large money corporation coming in and blocking access to historically utilized trails is intimidating, but what is more intimidating is not seeking counsel before deciding that nothing can be done and being left deprived without remedy. The attorneys at Bryan, 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.