[Tweeters] Property easement by prescription

Scott R a y mryakima at gmail.com
Fri Jun 29 11:26:33 PDT 2007


The case in Wyoming sounds like a good example of development of an
"Easement by Prescription" in which "open, notorious and hostile"
(i.e., without the consent of the true property owner)  use of
another's land for a period of 10 years ( in WA) causes a portion of
the land to become under the control of the trespassers for the
purpose of an easement.

We currently have a case here in Yakima County in which a primitive
trackway crossed a piece of vacant land for 15+ years (provable by
aerial photos).  In early 2007 the land owner decided to build a house
on the property and then, deny access across the land.  He was
subsequently advised that this trackway had become a public easement
by prescription.

The interesting thing about this kind of easement development is that
open and notorious trespass is required.  The more people that know
about the trespass, the better the case. And the property owner's
knowledge of the trespass and inability to stop it even strengthens
the case for the easement.

I am pretty sure that Wyoming has the same law.  These are ancient
laws that have been on the books or operating as case law in most
states since the beginning. It sounds like the rafters should be
looking at this angle to maintain access.

This web site describes in detail, law pertaining to prescriptive easement.

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

Scott R a y
Yakima



On 6/29/07, Kelly McAllister <mcallisters4 at comcast.net> wrote:
>
>
> Interesting to see a story in this morning's Olympian on the subject of trespass. It's about river rafters in Wyoming but it seems to have a bit of relevance to trespass here in the Pacific Northwest. The rafters park on the road and carry their rafts a very short distance over private land to put the rafts in a small stream, Fish Creek. Property owners, tired of the loud partiers crossing their land, have posted signs saying, "Private property. No trespassing, parking or creek access. Violators will be prosecuted". A representative of the National Organization for River says that this action flies in the face of long-established case law that's been settled by both the Wyoming and U.S. supreme courts. The jist of the case law is that, "where one public route crosses another, you have a right to go between the two.... The county government should be enforcing the public right, not interfering with it".
>
> In this particular case, the county Sheriff treats the issue more or less as Dave Templeton describes: Sheriff Bob Zimmer said both sides need to respect each other. "In my opinion, landowners need to be a little bit understanding". Basically, in the world of law enforcement, birders are unlikely to be treated harshly though it's unlikely that anyone who flagrantly violates private landowner rights is going to get any sympathy.
>
> In the Wyoming story, Teton County prosecutor, Steve Weichman, said he would defend the public's right to use - and access - pubic waterways, "I'm siding with the working-class guy who wants to get on a truck tire and float the creek because he can't afford a round of golf at Teton Pines. There's a public trust in this water. Floating is just great. So, when it comes to recreationalists (sic) versus landowners, the recreationalists win, and I vote for them every time."
>
> This story is obviously about a very specific type of trespass and doesn't pertain, directly, to the Reecer Creek situation but it's quite good in its illustration of attitudes and a particular instance where case law has held up a certain right of public access to public resources. As we all know, case law is establishing precedents every day and the future may well hold some surprises in this arena.
>
> Kelly McAllister
> Olympia, Washington
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>



-- 
Scott R a y
Aflac District Coordinator
Moxee, WA
509.961.2625
mryakima at gmail dot com


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