Protecting private roads

PhotographAs if landowners don't have enough to worry about already, a small but committed group of activists has targeted private roads as the next property rights battle in Montana. The situation typically goes like this: an individual identifies a road on which he would like access, or a road he had at one point had permission to travel, then an activist group pores over old maps and property records to attempt to justify opening the road to the public. In our experience, the justifications they come up with are shaky at best, and it seems the strategy is more a war of attrition than legal justice. They have, and will continue to, vilify the landowner in question and use political muscle against county officials in a shameless attempt to get their way.

UPOM is here to help you if you find yourself targeted by one of a handful of groups attempting to force access to private land.

Know Your Landowner Rights

  • Know for certain if the road is private. There mere depiction of a road on a government survey is insufficient in and of itself, without more, to establish the existence of a public road.  Yet we hear in the press the very opposite: "it appeared in an historic government survey, so it is a public road." That battle cry of the activists is simply false.

    In fact, a public road can only be created in one of the ways allowed by state law.  Since Montana became a territory, its road law has changed many times, and is still changing.

    It is very important to ascertain when and how the activists claim a road became public, because that information will also identify what version of Montana road law will apply to the resolution of your issues. 

    Your county clerk and recorder's office is a good place to begin a search of historic public records.  For example, if activists claim that your road was made public by statutory dedication, then the clerk and recorder's records should contain the original petition executed and filed by freeholders who asked the county to lay out and open a county road in a specific location.  Is the location depicted in that petition the same as your road?

    In addition, during open public meetings, in response to such petitions the board of county commissioners must then appoint viewers, who must examine the route and make a written recommendation to the commissioners.  The clerk and recorder's office should maintain the original viewer's report and recommendation, and any county commission meeting minutes generated as a result of it.

    Ultimately, the county commission must take affirmative action and vote to approve a road dedicated pursuant to statute.  These official acts should be noted in the county commission's official minutes, which should be taken and maintained by the clerk and recorder.

    It may also be important for you to obtain the chain of title back to original patent for all private property over which the road at issue crosses.  The original government survey plat, as well as the original government surveyor's original notes, could also be important.

    You may have heard the term "RS 2477 road."  RS 2477 is the citation to an 1866 federal law that has relatively limited applicability in Montana.  The Montana Supreme Court has construed this law as a mere offer to local counties to make public any roads that existed within the unreserved public domain.  The law cannot apply to roads laid out after the public domain was reserved or  conveyed into private ownership.  Moreover, activists claiming the existence of an RS2477 road must prove in court by clear and convincing evidence that the road was established by one of the ways allowed under the controlling version of Montana law.  The proper application of RS 2477 is a particular area of abuse by activists, so know your rights.

    Another way a road could be open to the public is through the provision known as "RS 2477." Under RS 2477, public use of the road prior to 1895 is enough to establish the road as a public highway, as long as evidence exists of the public using the exact route of the road for a specified period of time (typically either 5 or 10 years) prior to the land leaving the public domain. Again, the mere existence of a road on a map is not evidence enough that the road was used by the public for RS 2477 cases.

  • County attorneys and county commissions cannot "open" or "declare" a road open to the public. County attorneys do not have the constitutional authority to open public roads or to otherwise declare by executive fiat the existence of such roads.  They are entitled to an opinion, and it could result in the illegal takings of your private property without due process or just compensation.  So do not let county attorneys intimidate you into waiving your private property rights.

    This can be a particularly egregious problem in light of the fact that the board of county commissioners, like "the King," have the "power of the purse" -- that is, the right of eminent domain. 

    Road disputes must be resolved in district court.  Again, people claiming the existence of a public road must prove by clear and convincing evidence each element of the controlling law in effect at the time it is alleged the road became public.
  • Historical public recreational use does NOT make it a public road. Anti-property advocates have claimed that if a landowner has traditionally allowed some public access accross his property, he may not restrict that access in the future. This type of arrangement is referred to as a "prescriptive" road. However, the Montana Supreme Court has consistently held that seasonal recreational use for hunting and fishing is insufficient to establish a puic road by prescription. Instead, claimants must show by clear and convincing evidence commercial and or residential uses to prevail.
  • Governments may NOT use eminent domain powers to force access across private land for recreational access. Another tactic the anti-property groups have used is to threaten the use of eminent domain to force access across private land to public land. Courts have never supported this use of eminent domain.
  • Your property must be posted against trespass to prevent unauthorized use. Failure of a landowner to post land gives the public the right to enter that land. Land should be posted at "each gate or normal point of access", including bridge abutments that are used by the public for stream access. If the public has right of way over a road through the property, the posting should specify "no trespassing off road next ___ miles". The lessee of state land may post authorized signs requesting prior notification to anyone entering upon the leasehold; the signs must set forth the lessee's name, address, telephone number, and method of notification. For hunting purposes, it is the hunter's responsibility to know if the ownership status of the land, so failure to post property does not give an excuse to trespass for hunting purposes.

This information is presented for educational use only, and should not be considered legal advice. For more information, or help with a road dispute, please contact UPOM.