Montana’s stream access laws have become a sparring point in this year’s gubernatorial race, so it’s fitting that one of the larger lawsuits in recent history appears to be settled, with Montana on the winning side.
Two weeks ago, a Madison county judge supported the cause of stream-access proponents when he ruled that the public was allowed to use a strip of land to either side of a road and bridge that crosses the Ruby River. That was the final piece of a larger case that the Public Land/Water Access Association filed a dozen years ago against media billionaire James Cox Kennedy after he tried to deny public access to the Ruby River, in this case via the Seylor Lane Bridge.
PLWA attorney Devlan Geddes said the effect of District Judge Loren Tucker’s ruling is that fishermen now have enough room to walk off the road near the public bridge to below the high-water mark without trespassing on Kennedy’s ranch. Montana’s stream access laws allow the public to walk along a river through private land as long as people stay below the high-water mark.
Fishermen have always used bridges to access Montana's streams, but Kennedy tried to argue that the easement extends only the width of the bridge, in which case the short stretch leading down from the bridge to the high-water mark was his property and people trying to get to the river would be trespassing.
The public’s right to use the bridge itself was confirmed in January 2014. That’s when the Montana Supreme Court ruled in favor of the PLWA saying that a public “prescriptive” easement existed across the bridge because the public had used Seylor Lane and a couple other bridges for years prior to Kennedy’s purchase of the surrounding ranch. Kennedy had gated the bridges in the early 2000s and challenged whether public use had been enough to establish a prescriptive easement.
A prescriptive easement across private property is established by a history of public use, even if such use isn’t formally documented. But the lack of documentation can make it hard to prove. Often, the main justification for a prescriptive easement is access for county maintenance crews or utility companies. This was the first case where the court emphasized that public recreational use can be considered proof of historic use.
The Montana Supreme Court also said such easements include an adjoining right-of-way that the public may use.
The question then became: Was the right-of-way along Seylor Lane wide enough to allow the public to climb down the bank around the bridge abutments without trespassing? This is the question the Montana Supreme Court remanded back to the Madison County court.
Kennedy - and the Montana Stockgrowers Association who intervened - wanted the smallest right-of-way possible and only at certain points along the road where maintenance was needed, such as near a power pole. Kennedy’s attorneys didn’t want borrow pits along the road to be included and certainly not at the bridge abutments.
Judge Tucker decided it was “reasonable” that county and state maintenance crews and the public have a 5-foot width both upstream and downstream from the bridge abutments for inspection duties and recreational enjoyment. The width of the easement needed to include existing borrow pits, and that width should extend along the length of the road.
“That which is reasonable depends upon the context. A reasonable amount when both parties to a negotiated transaction are seeking the same goal may be different from that which is reasonable when one party is attempting to acquire rights from the other party without compensation and based upon hostile use of the other party’s assets,” Tucker wrote.
The defendants have questioned Tucker’s meaning and whether his ruling is valid.
In a statement, Geddes said there was nothing unclear in Tucker's ruling about the additional 10 feet of width. "This is a victory for PLWA, because the Court confirmed that Montanans may lawfully access the Ruby River from within the Seyler Lane right of way," Geddes said.
Geddes may finally be able to put his Seylor Lane case file away, although he’ll still be busy. There are unfortunately too many other landowners locking up Montana’s public land and water by challenging other prescriptive easements and gating established roads. In fact, Republican gubernatorial candidate Greg Gianforte sued in 2009 to challenge an easement across his land that allows public access to the East Gallatin River near Bozeman. The issue was fortunately resolved, but it’s become fodder for November’s gubernatorial race.