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Opportunity to appeal to U.S. Supreme Court could overturn Montana stream access law

Montanans awoke today to find their Constitutional property rights further eroded by the Montana Supreme Court, which has upended over 100 years of established road law in a new decision released today. The implications of the ruling are far reaching for landowners throughout the state and a serious blow to the right of Montanans to own, use, and enjoy their property. The decision could ultimately lead to a bigger win for landowners, however, because it may give an opportunity to appeal to the U.S. Supreme Court on the larger issue of the Constitutionality of Montana’s stream access law.

In a dissent to the decision, Justice Laurie McKinnon noted that the Montana Court had to import prescriptive road law from other states to justify their decision. In fact, the decision overturns a recent law passed in Montana that specifies that specifically did not give the public the right to trespass from prescriptive easements.

The core of the Court’s decision expands the century-old definition of a prescriptive easement, which is an easement created without permission of the landowner after a statutorily defined period of adverse use. Heretofore, prescriptive easements were confined to the adverse use and to the specific land area that was used adversely, with the government having just an incidental right to leave the easement only as necessary to repair or maintain it. Thus, a public road allowed public travel only on the road, but the government could use areas near it solely for things like road embankments and ditches. Today five members of the Court ruled that any such road support could be used for any foreseeable purpose, including an additional travel way, pedestrian path or any other use that seems useful to the public. As two blistering dissents pointed out, that expanded width would just make way for more “incidental” need for maintenance, which would lead to a widened travel way, and so on.

“The Court is essentially saying that the county government can give the public permission to enter private land if it is near a road. We have a term for that: trespass,” said Chuck Denowh, policy director for United Property Owners of Montana. “It’s amazing the Court would thumb their nose at the Montana legislature and import legal theory from other states to support their ruling.”

Though the specific case deals with a prescriptive easement at a bridge, the new precedent can be used wherever a prescriptive travel way exists in Montana. “We see the opportunity for all kinds of mischief coming out of this case,” said Denowh. “Property owners that are unfortunate enough to have a prescriptive road cross their property should now expect to be a target for trespass on adjoining property.”

The Court’s decision was largely silent on the larger issue in the case, whether Montana’s stream access law is Constitutional in light of the U.S. Supreme Court’s 2012 decision PPL v. Montana. In the unanimous decision, SCOTUS eviscerated Montana’s claim to ownership of nearly all the streambeds in Montana, the same legal theory that underpins the stream access law.

“While we’re extremely disappointed in the realignment of the law on prescriptive easements, we’re excited that this decision may very well open the door wide open to a Constitutional challenge to stream access,” Denowh said. “Thousands of landowners had their property taken from them overnight nearly three decades ago, and this may be our chance to restore that injustice.”