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Old 07-20-2008, 10:40 PM   #10
Ceteris non Paribus
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Joined: Feb 2007
Location: Elizabeth, Colorado
Oddometer: 3,333
Originally Posted by Opie
I'm starting to think I should just ignore the flippin' signs. Let 'em catch me and charge me with trespassing. Sheesh.
I wouldn't recommend it. Some private owners get pretty testy. One of our local inmates found herself on a private road that was not posted in any way, and is shown on some maps as public. She came to a dead end in someone's yard, and turned around to go back to the main road. Not watching her mirrors, she suddenly found a truck blasting up beside her on the road, and about the same time she saw it beside her, the truck swerved suddenly into her, and forced her off the road (and into a pile beside it). Thankfully, she was not hurt badly, but she reported the incident to the local Sheriff anyway. When the deputy went to talk to the perp (who, interestingly was also female) the perp/landowner thought she was entirely justified in attacking a trespassing motorcyclist by ramming the bike!

In an odd twist of fate, the county is in the process of posting road names on every road in the county, and noting on the sign whether the road is private. A week after this incident, the signage crew reached this area. Today there is a sign on the road, noting that it is private. A week earlier, had the sign been there (or any sign suggesting it was private) our friend would not have bothered exploring it, and would not have got run down.

I have to admit, I have some sympathy for landowners who stop the public from using roads across their private land. I myself own land that is an inholding (surrounded by BLM public land). There is a former county road passing through my land, which was abandoned almost sixty years ago when the county paved the road, and moved it a mile north, so the new road no longer crosses my land. My land remained unfenced from the surrounding public land for those sixty years, and we only decided to fence it recently, when we gave up the grazing lease on the surrounding BLM land. (It was fine when our own cattle were hanging out in the creekbottom, but now we want to restore the riparian system, and we don't want someone elses cattle either grazing on our land, or tearing up the riparian area. We can't control how many cattle are allowed into the area now, or during what season they are there, so we have to build fences to keep them out of our private land.)

Then, of course, the question arose: do we fence across the ancient public road where it crosses onto our land? The question is made all the more important because the road crosses the creek, without any bridge. (The steel culvert that was in place when the road was abandoned sixty years ago has long since rusted away, so vehicles now drive through the creek, resulting in ruts, muck, and silt downstream.

The area is remote, and because there is a good paved road nearby, almost nobody comes across our land on the old road anymore. The county, having a nice new road nearby, has no interest in installing a culvert to keep vehicles out of the creek. In their opinon, this is no longer a county road. They haven't done any maintenance for sixty years, and it is now no more than a two-track acorss the prairie.

But a few antelope hunters still cruise through in the fall. No doubt, they will be pissed if we build a fence to keep them from crossing the creek. They will probably cut the fence year after year, until they finally give up, if they feel they have some right to drive through our land. The only creek crossing on the south is also on our land, on an abandoned railroad grade, which we must also fence to keep cattle off our land. We also must keep the public off the old railroad grade, because it is an enormous liability risk, raised some 80 feet off the creek bottom, with no guard rails, and very steep sides. Of course, we could put a gate in the fence, and post signs indicating that the land on the other side is private, and so is the road (which it is, and we have no intention of ever using it again.) We would like to reclaim the old road, and the creek crossing, and we have every legal right to do so. No doubt, though, if we do, we are going to piss off some antelope hunter who has been driving through there for years, and now has to go around to the new highway to cross the creek.

It would be an interesting case if we close the road, and someone sues us claiming a prescriptive easement. (A prescriptive easement is an unwritten easement, arising out of continued use of the road for a certain period of time, under a claim that the user had some right to use the road.) The guy who sues us would have to have evidence of the continued use, and would of course point to the most obvious: look at those well-used rutted tracks across the creek! We would of course claim that the rutted tracks across the creek are the very thing that makes it so important that we stop the trespassers, to prevent further damage.

Who knows how such a case would turn out, but it would cost the guy at least $20K in attorneys fees to get to the point where a judge makes a decision.

We still haven't decided what we will do.
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