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Old 04-23-2013, 05:10 AM
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Default Montana Stream Access Goes to Court Again

A 2012 ruling by a Madison County judge that a right-of-way easement on Seyler Lane over the Ruby River south of Twin Bridges, Mont. applies just to the roadway surface, not the borrow pits or bridge abutments, has been appealed by the Montana Public Lands/Water Access Association. The Montana Supreme Court will hear the case on April 29 on the campus of Montana State University in Bozeman. A cross appeal has been filed by Atlanta resident James Cox Kennedy, the involved landowner .

The appealed ruling effectively disallows recreational access to the river from said bridge, which is on a prescriptive easement road. This has significance because many roads in the state are prescriptive easements and not dedicated county roads. Prescriptive easements are crated by continuous public use.

PLWA, along with most of Montana’s anglers, believes the right-of-way is the full fencepost to fencepost width and that recreational use is allowed just like any other legal use. The other side contends that the width of the road is the ‘travel way’ or the 16 or so feet of the hard surface – unlike county roads which have a 60 foot right of way. PLWA contends that it is at least 40 feet based on historical use during the prescriptive period. PLWA also contends that whatever the width of the prescriptive road, it does not narrow at a bridge.

In addition, PLWA also contends that easement use includes all legal uses such as herding cattle, road maintenance involving the borrow pit, and recreational use, all of which require much more than the travel way. They contend that ” If the right-of-way covers only the road surface , children waiting for a school bus or motorists changing a flat tire would be trespassing.”

PLWA previously won a similar case regarding the Ruby River’s Lewis Lane and Duncan Lane bridges – the next bridges upstream on Kennedy’s property- that upheld recreational access from bridges. In those cases it was ruled that the road right-of-way and the river right-of-way overlap. These two bridges are county roads, not prescriptive easements ; thus are not a precedent for the Seyler case.

These rulings have promoted a cross appeal to the Seyler Lane case by Kennedy claiming that the whole Montana Stream Access law is an unconstitutional “taking” of his streambed property and the entire Montana stream access law is unconstitutional .

The public can support PLWA on this case and multiple public-access cases statewide, by becoming a member for $20 annually (PLWA - Public Land / Water Access Association, Inc). It has also set up the “Stream access defense fund” specifically to defend Montana’s fabled law against the big-money opposition. All funds donated to PLWA between now and June will default to the fund; after that a note in the memo section of your check can indicate that you want the money directed to the funds.

To support PLWA and stream access in Montana, the public is encouraged to attend the hearing at 9:30 a.m. in the Strand Union Building, Ballroom A on the campus of Montana State University in Bozeman.

Public Lands/Water Access Association
PO Box 80987
Billings, MT 59108
PLWA - Public Land / Water Access Association, Inc
Paul Sharman
Fish and Fly Ltd
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