By Senator Debby Barrett
The Montana Supreme Court’s recent ruling on an important stream access case represents an alarming expansion of access law at the detriment of property rights.
But despite headlines announcing a win for stream access, the court all but ignored the 1,000-pound gorilla in the case: whether Montana’s stream access law is constitutional. Ultimately, if the appellants are successful in appealing to the U.S. Supreme Court, the case may yet prove to restore the property rights that were taken from Montana landowners 30 years ago.
The case originated when activist group Public Land/Water Access Association challenged the legality of Madison County allowing a private landowner to attach a wood-rail fence to a bridge across the Ruby River, thereby preventing trespass across the property to access the river. In this case, the county had no right-of-way beyond the width of the roadway. In other words, stepping off the roadway meant stepping onto private property, thereby trespassing.
But in a stunning obliteration of over 100 years of established Montana road law, the Supreme Court has greatly expanded the confiscatory power of government relating to prescriptive easements. 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.
The new precedent set by the court is that the public can go outside the original bounds of the easement and into the support area for any reason. That will surely invite all sorts of headaches for landowners who are unfortunate enough to have prescriptive easements cross their property.