Acessing Public Land through Private Property

[Str8Shot]

After reading some statements on another thread I started wondering about easement rights for our public lands. I have a limited knowledge of real estate law, but figure some on here may have the answers to the questions on my mind. If tax dollars are being used to maintain an easement/road would that not constitute a public easement restricting any private owner of land that the easement crosses from denying access? Has anyone in our hunting community researched the actual easement classifications of the deeds on the private properties that have put up locked gates to shut the public out of Public BLM and Statetrust Land we are all legally entitled to use?

Last thing I was thinking was, does not the legal use of Public land via access of easements maintained by public funds with a long history of public use both constitute an easement by necessity and an easement by grandfather rights based on length of use of said public land? I understand the many reasons ranchers and such try to close out the public, but where is the law on this and how gray is the area on easements and the right of access? I guess I was always under the impression if it is maintained by public dollars it is a public use easement and it is unlawful for any private land owner to prohibit use of said easements.

 

Would be great to hear your feedback and maybe hear from someone that knows a little more than myself and the laws as it it pertains to this issue.

[JLW]

After reading some statements on another thread I started wondering about easement rights for our public lands. I have a limited knowledge of real estate law, but figure some on here may have the answers to the questions on my mind. If tax dollars are being used to maintain an easement/road would that not constitute a public easement restricting any private owner of land that the easement crosses from denying access? Has anyone in our hunting community researched the actual easement classifications of the deeds on the private properties that have put up locked gates to shut the public out of Public BLM and Statetrust Land we are all legally entitled to use?

Last thing I was thinking was, does not the legal use of Public land via access of easements maintained by public funds with a long history of public use both constitute an easement by necessity and an easement by grandfather rights based on length of use of said public land? I understand the many reasons ranchers and such try to close out the public, but where is the law on this and how gray is the area on easements and the right of access? I guess I was always under the impression if it is maintained by public dollars it is a public use easement and it is unlawful for any private land owner to prohibit use of said easements.

 

Would be great to hear your feedback and maybe hear from someone that knows a little more than myself and the laws as it it pertains to this issue.

seems complicated!

here is a link to the description of different types of easements.

http://en.wikipedia.org/wiki/Easement

 

james

[JLW]

here is 1 description.....

Recreational easement. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easement also includes such easements as equestrian, fishing, hunting, hiking, trapping, biking (e.g., Indiana's Calumet Trail) and other such uses.

 

james

[Coues79]

The Game and Fish needs to actively work on this. There's so many ridiculous landowners that lock up gates that are the only access points for public land. Absolutely ridiculous that a landowner can lock a gate to prevent people from accessing public land, yet they have all privelages to that public land plus their own. Ridiculous.

[Str8Shot]

here is 1 description.....

Recreational easement. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easement also includes such easements as equestrian, fishing, hunting, hiking, trapping, biking (e.g., Indiana's Calumet Trail) and other such uses.

 

james

 

There seems to be a lot of broad information when searching on line... I was more interested in Arizona Specific and Right-of-way easements for Public use lands. I know many roads/easements to public land are maintained by Tax dollars and as mentioned in another post many get gated locking out hunters access to the lands they are entitled to access. I also know that any public dedication of a road/easement (usually by naming and filing not necessarily by an event) constitutes a legal public use easement. SO, While I understand tax incentives for use of private land and even for access have been granted in some instances, there are laws on right-of-way easements that may be overlooked by many. I want to find out more about the legality of gating roads either deeded as public use easements, or through grand father rights could be determined to be easements of necessity... My concern comes if tax dollars maintain and the history of a road shows the use as a primary historical corridor to public use land, that any locked gate denying access would seem illegal and in violation of laws. Searching around the net there seems to be a lot of general information but nothing very specific.

[JLW]

it seems as Arizona's laws are vague at best except when it comes to utility companies.

Here is an article I found....

Know Your Easement

Frederick J. Petersen

 

Early case law describes property rights like a bundle of sticks. Each stick represents a different right that can include the right of ownership, of possession, of use, the right to collect rents, the right to income produced by the land, etc. Easements generally concern only one of those sticks--the right of use of property...someone else's property for a limited purpose.

 

Today's law recognizes numerous easements. They include very particular situations such as giving the federal government the right to regulate navigable waters, even when the regulation interferes with private water rights (navigation easement), allowing unimpeded aircraft flights over one's land (avigational easement) and a prohibition against building structures on one's property that would block light and/or air on a neighboring property (a negative easement called light and air easement). There's even an easement that allows one property owner to flood another property owner's land, for instance, to control the water level of a reservoir (flowage easement).

 

The "use" that is most commonly associated with easements is the right-of-way across someone else's property. Easements, especially right-of-way easements, can be created under the law by open, continuous and adverse use (prescriptive easements) or by statute for utility companies to benefit the community (utility easements). However, most easements are "granted" from the land owner (grantor) to another (the grantee). The "servient estate" of an easement is the property owned by the owner/grantor that the easement burdens or runs on. The "dominant estate" is the property owned by the grantee benefitted by the easement.

 

When a right-of-way easement is indispensable to the reasonable use of the adjacent property, the law will create it by necessity. These are usually for property that is "landlocked" such that without the easement, there is no way to get to or from the property. Implied easements are also created by law when an owner of two pieces of land uses one to benefit the other such that, on sale of the benefitted parcel, the buyer could reasonably expect the use to be included in the sale.

 

Once created, most easements are "appurtenant" (meaning they benefit a dominant estate) and are "incident to ownership" of the dominant estate (meaning that without the ownership of the dominant estate, the easement loses its purpose.) These easements are said to "run with the land." There are, however, "easements in gross," which benefit a particular person and not a piece of land. In fact, the benefitted person may not own any land close to the servient estate.

 

With the exception of utility easements, there is little direction from the law in Arizona on what needs to be in the description of an easement. In fact, Arizona law says that an easement is not void for lack of a sufficient description, so long as the servient estate is sufficiently described. So there is no requirement that a "legal description" based on a surveyor's report be used. When the width, length, and location of the easement have been expressly set out in an easement grant, that description will be strictly read to control the scope of the easement, notwithstanding what the dominant estate actually needs. But where the terms of the easement haven't been fixed by the grant, the dominant estate is usually entitled to an easement with such width, length, and location as is sufficient to afford necessary or reasonable ingress and egress.

 

Most litigation surrounding easements, involves disputes as to location, scope, extent, or purpose of the easement. Generally, resolution of these disputes involves filing a declaratory judgment action asking a court to establish the rights of the parties. A declaratory judgment action does not provide for or order enforcement of rights, it merely tells the parties what rights they have. Before any property is bought or sold, it is a good idea to review carefully any deeded easements to make sure they grant what was intended. Litigation involving the scope or intent of an easement can be lengthy and expensive. It is always a better practice to define easements carefully so parties know what rights in the "bundle of sticks" they are giving and getting.

 

Does it have to do with the easement description on the deed?

This is a great question!

I hope some others on here have more knowledge of this topic.

As str8shot stated there is alot of info on the net but nothing pertaining to arizona laws as far as right away....

 

james

[scoutm]

The Game and Fish needs to actively work on this. There's so many ridiculous landowners that lock up gates that are the only access points for public land. Absolutely ridiculous that a landowner can lock a gate to prevent people from accessing public land, yet they have all privelages to that public land plus their own. Ridiculous.

 

 

Couldn't agree with you any more strongly....But, at the same time J-off yahoos need to stop giving them reasons to lock the gates - leaving trash, shooting signs, leaving gates open, trashing fences and so on. This year I saw a hunting camp that allowed their kid to cut down a mature tree with an axe - there was absolutely no reason for it - I'm sure that thrilled the rancher.

[AzHuntingAddict]

Easements on private land only allow access to a section of land to those that file the easement. Electric, irrigation or right-of-way easement is placed by a service provider or municiple interest. You can access public land, BLM, BOR, USFS etc. with a hunting license. Private land that abuts a public land is not required to allow the public access throgh the property. If the private property has an easement for right of way, say a roadway, then one could argue the access, but the land owner has the right to restrict the access unless there is a resonable request for access. To really argue the easement use, you need to find the deed or assignment of easement and read who has the authority to use the said easement. This is all spelled out in the legal description and the rights or grants of easement.

[billrquimby]

Arizona has an adverse possession law that might apply. Although I am not a lawyer, I do have some personal experience with it.

 

Briefly, it allows someone to take possession of another person's land after seven years of conspicuous use if the original property owner did not grant permission and took no action to restrict blatant use.

 

Again, I'm not a lawyer and don't know if hunters and others who have used a road across private land for decades could bring this law into play, but I do know that there are locked gates blocking access to roads I used for more than 30 years. Some of those roads even had been maintained by counties.

 

Bill Quimby

[Coach]

I just posted about this on another thread (the huge sale of tags thread) so this might be a rehash. But, It seems to me we are basically funding, through our tax dollars, very long driveways to some remote ranches. If a road is publicly maintained, it should not be subject to closure by the land owner. That's just my opinion, but I think G&F and the Forest Service has bent over backward to accomodate some of the private land holders, only to see them "flex" their limited muscle to treat the public land beyond their boundaries as their own private playground.

 

I'm all for any means of putting this arrogance in its place. While I do understand the damage some idiots do to private property, I don't think anyone has the right to block access to public land off a public road.

[aztrophytakers]

The Game and Fish needs to actively work on this. There's so many ridiculous landowners that lock up gates that are the only access points for public land. Absolutely ridiculous that a landowner can lock a gate to prevent people from accessing public land, yet they have all privelages to that public land plus their own. Ridiculous.

 

 

Your post is rediculous. Try being on the other side of the coin. You try to scrape out a living raising cattle and have to deal with cows getting shot with both guns and bows or worse one your best horses. Storage tanks being shot full of holes draining them and droughting out your cattle. Gates being left open and causing you weeks of work in one night when 300 fresh weaned calves go thru it. Maintaining the water sources that allow the game to exist in the first place, all with your own money. Trash left everywhere for you to pick up if you don't want to look at it. Awfully selfish point of view to blame a rancher for locking HIS private property to prevent having to deal with the few ignorant a$$es that ruin it. Me me me!! What about him??

[billrquimby]

I just posted about this on another thread (the huge sale of tags thread) so this might be a rehash. But, It seems to me we are basically funding, through our tax dollars, very long driveways to some remote ranches. If a road is publicly maintained, it should not be subject to closure by the land owner. That's just my opinion, but I think G&F and the Forest Service has bent over backward to accomodate some of the private land holders, only to see them "flex" their limited muscle to treat the public land beyond their boundaries as their own private playground.

 

I'm all for any means of putting this arrogance in its place. While I do understand the damage some idiots do to private property, I don't think anyone has the right to block access to public land off a public road.

 

Amen, coach. Problem is, what is a "road?" Years ago, when I did a series of articles on southern Arizona's growing access problems for the Tucson Citizen, I seriously researched Arizona law and definitions used by DOT and the various state and federal wildlife and land management agencies, as well as the Department of Defense and Indian tribes. I've forgotten how many definitions there were then, but it was somewhat more than two dozen. I'd bet that there are even more now. Two tracks qualified as a road for some, not for others. Some required "regular maintenance," whatever that might be. Others required a road to be specifically owned by an entity. My favorite definition claimed anything that shows a history of use by wheeled vehicles is a road.

 

Bill Quimby

[Coach]

Yep Bill, I have seen the results of similar studies. The area around Araviapa and SW of Safford seems to center around those contentions. Fortunately, AZ is far less subject to the checkerboard issue that NM is facing. Most of the landlocked areas I've seen in AZ could be accessed by a road outside the gates of public land. This was attempted with some succss in 31 years back. Most of the area South of Stockton Pass was blocked by a single rancher, but G&F dozed a road just outside the fence to provide access to O-Bar-O and Bar X canyons.

 

It wasn't the best road around but it opened up opportunities that had previously been unavailable. I think we could persue a similar approach with much of the land-locked public lands in AZ. A simple trail around the small, genuinely private land to get to the vast public lands beyond.

 

Heck, given the membership on CWT, I doubt it would even cost a dime. Many of the guys and gals here have the equipment and time to cut a suitable road around the more notable closures, within the confines of the law, and open up worlds of public hunting lands that have been untouched for decades.

 

On the flip-side, I'm not averse to strapping on a heavy pack and walking right around the private land to get where the deer are, so maybe it's a blessing that some of our best resources are not easily accisible.

 

Take every adverse situation as opportunity - eh?

[billrquimby]

"Your post is rediculous. Try being on the other side of the coin. You try to scrape out a living raising cattle and have to deal with cows getting shot with both guns and bows or worse one your best horses."

 

It's your post that is ridiculous, beginning with your spelling of the word. Then consider your "cows getting shot with both guns and bows or worse one your best horses." Now that's so "rediculous" that it's positively laughable.

 

There are no guns or bows commonly used by hunters that are capable of shooting a horse at a cow, at least none that I know of.

 

Bill Quimby

[Coues79]

The Game and Fish needs to actively work on this. There's so many ridiculous landowners that lock up gates that are the only access points for public land. Absolutely ridiculous that a landowner can lock a gate to prevent people from accessing public land, yet they have all privelages to that public land plus their own. Ridiculous.

 

 

Your post is rediculous. Try being on the other side of the coin. You try to scrape out a living raising cattle and have to deal with cows getting shot with both guns and bows or worse one your best horses. Storage tanks being shot full of holes draining them and droughting out your cattle. Gates being left open and causing you weeks of work in one night when 300 fresh weaned calves go thru it. Maintaining the water sources that allow the game to exist in the first place, all with your own money. Trash left everywhere for you to pick up if you don't want to look at it. Awfully selfish point of view to blame a rancher for locking HIS private property to prevent having to deal with the few ignorant a$$es that ruin it. Me me me!! What about him??

 

I wouldn't call it ridiculous nor "me me me" "public" isn't about just "me" buddy. Its the "public". Whether its me or some city slicker from a high rise we should have access to public land if the road has been used for public access in the past. If some rancher has cut roads all over his own property, on his own dime then I ain't got a fuss about it.

 

I can tell you about land all over in 29, 30A, 31 and 32 that are locked up and it keeps gettin worse. I guess i could park on I-10 and treck the 7 miles to the doz cabesas. Too bad my old man and my kids cant though.... guess we can go on to 31 too. Heck there ain't but two access roads on the 31 side of klondyke anymore. All because some ranch outfit is gettin the rights to the country and putting up locked gates all over the place. So i guess cause I'm a law abiding citizen, pick up trash and teach my kids ethics of hunting, I gotta suffer for some arrogant rancher? I can't access country that I grew up hunting anymore and as a result can't share that country with my kids anymore.

 

I ain't one to complain or rant and rave very often but when it comes down to this, it ticks me off. Yeah, I can see your points that you made but you identified the extreme minority of hunters. I ain't one of em, my kids won't be one of them and i sure don't know or associate with anyone like that. Probly most of the folks on this site ain't what you described either.

 

It is what it is. There won't be anything done about it. Its been this way for decades with landowners lockin gates up. Sucks for the guy that wants to show his kids where he grew up huntin but can't cause of a 2 inch x 2 inch piece of metal.