Private landowner closes century old trail to public water falls

[Liberal_in_LA]

Landowner puts foot down on mountain trail

For decades, hikers, hunters and fishermen have made the same trek up Matilija Creek, drawn by its pristine swimming holes and, near the top, a series of cascading, year-round falls. But a private landowner is seeking to change that custom.

For more than a year, Shull "Buzz" Bonsall Jr. has been approaching trail users and shooing them off the acreage owned by his family's trust. The falls are on public property but roughly two-thirds of the trail to reach them is on Bonsall's land straddling Matilija Creek.

Earlier this year, he informed the U.S. Forest Service that he no longer wants the public traversing his property.

In April, the Ojai Ranger District issued a statement warning hikers that they are trespassing when they use the trail. Though no citations have been issued, the ranger district agreed to post signs in coming months warning the public that people can't enter the property without Bonsall's permission. Bonsall says he will erect his own signs.

Bonsall, whose father built a real estate empire stretching from Monterey to San Diego, declined to comment. But he told the Ventura County Star that his family is concerned about litter, illegal camping and hikers getting hurt on the property.

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Local conservationists have swung into action, forming Keep Access to Matilija Falls Open, a group intent on preserving public access to the falls. Organizers say they hope to meet with Bonsall to address his concerns.

-----------------------

But if they are unable to reach agreement, the citizen's group is prepared to file suit, Kuyper said. The public has used the trail continuously for more than a century, creating a "prescriptive" right to continued access, he said.

-----------------


Ojai Ranger John Bridgewater said the U.S. Forest Service does not officially recognize the trail. Bonsall has owned the property since 1979 and posted many "No Trespassing" signs over the years, Bridgewater said. But they are always vandalized or torn down.

There's no other practical route to Matilija Falls, he said, though the Forest Service might be interested in building one in the future. Talks with Bonsall about a possible land swap have so far gone nowhere.


http://www.latimes.com/news/local/la-me-adv-matilija-falls-20100627,0,6339818.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+latimes%2Fmostviewed+%28L.A.+Times+-+Most+Viewed+Stories%29

[MrScorpio]

1. The western version of "Get off on my lawn", apparently nt

[Occulus]

53. I stopped reading at "Bonsall, whose father built a real estate empire"

That tells me everything I need to know about him in connection to his actions. I bet he wants to make it a tourist trap and charge people.

Contemptible.

[truedelphi]

2. People in california are more worried about litigation than any other

State in the Union.

This sort of thing happens in many places throughout the state.

Despite all the places to go and things to see, you end up with not that many places to go and things to see.

Then people wonder why the kids turn to drugs.

[Jkid]

13. Then people wonder why the kids turn to drugs.

Because they got nothing to do because every entertainment or cultural option is out of reach. Same goes for urban youth in the inner city.

[NutmegYankee]

77. Connecticut Law relieves a private landowner of liability if a Hiker is hurt.

The relief from getting sued has ensured that tiny Connecticut has over 800 miles of trails, many crossing private property. Perhaps other states should adopt this type of law. Only the Hiker takes the risk.

[Xipe Totec]

3. two words

eminent domain

Let's see how he likes that.

[Davis_X_Machina]

6. Adverse possession, more likely. n/t

[ProgressiveProfessor]

10. Not in CA

[geek tragedy]

37. No, adverse possession would require actual possession, not

passing through.

[The Backlash Cometh]

38. The public probably have a case for an easement right.

[Xipe Totec]

42. Camino Real (The Royal Road)

There is a precedent, in California, no less:

Between 1683 and 1834, Spanish missionaries established a series of religious outposts throughout the present-day U.S. State of California and the present-day Mexican states of Baja California and Baja California Sur. To facilitate overland travel, mission settlements were approximately 30 miles (48 kilometers) apart, so that they were separated by one long day's ride on horseback along the 600-mile (966-kilometer) long El Camino Real (Spanish for "The Royal Highway," though often referred to in the later embellished English translation, "The King's Highway"), and also known as the California Mission Trail. Heavy freight movement was practical only via water. Tradition has it that the padres sprinkled mustard seeds along the trail in order to mark it with bright yellow flowers.

In 1912, the State of California began paving a section of the historic route in San Mateo County. Construction of a two-lane concrete highway began in front of the historic Uncle Tom's Cabin, an inn in San Bruno that was built in 1849 and demolished exactly 100 years later. There was little traffic initially and children used the pavement for roller skating until traffic increased. By the late 1920s, the State of California began the first of numerous widening projects of what later became part of U.S. Route 101. Today the route through San Mateo and Santa Clara counties is designated as State Route 82.<1>

An unpaved portion of the original Spanish road has been preserved just east of Mission San Juan Bautista in San Juan Bautista, California.

http://en.wikipedia.org/wiki/El_Camino_Real_%28California%29

[hootinholler]

43. That is an old concept in common law

I'm not sure how much transfers here, but in England it is a ancient right that the public has the right to use established paths.

-Hoot

[The Backlash Cometh]

45. Adverse possession type laws are very much alive in Florida.

All this push for property rights and deregulation are all about starting a new frontier for individuals who want to make life miserable for their neighbors.

[Gormy Cuss]

41. The Forest Service should be a new trail that skirts the edge of Bonsall's property.

Let him erect a fence and be done with it.

[Occulus]

55. Put the paving a couple inches off his property line, just to piss him off

This sort deserves to have people piss them off. It doesn't do the any real damage, and the "pissed off" part means that they can't do a thing about it.

I would, however, prefer one of the other options above, one that means "we're doing this, fuckface, and there's not a damn thing you can do to stop us".

[PavePusher]

49. Way to respect private property there. n/t

[Xipe Totec]

59. Way to defend feudal lords there

good job, serf!

[PavePusher]

67. Some guy that owns some land...

is now a fuedal lord?

Good job on the false analogies, statist.

[NutmegYankee]

78. Statist? As in Ayn Rand's (in)famous label?

Come on now! Common Law often provides access if the trail has been in use for a long period of time.

[Crystal Clarity]

79. "Some Guy" may own land

but not access to a public property if that access has been a long established trail... even if our generic "some guy" owns the property that encompasses some or most of that trail. This an established law in my State but doesn't appear to be the case in California. Pity.

Furthermore, law in my State also provides for public access (by foot) over private land to any water body over ten acres provided that the land is considered to be 'unimproved' land. This law is also known as The Great Ponds Act and has been in existence for nearly 300 years. The purpose is to ensure that the public not be prohibitively separated from what is considered to be a public possesion... a water body over 10 acres.

Though there have been a few attempts by private landowners, no one has successfully overturned or even chipped away at this old Colonial Statute. Mainly due to the fact that no judge wants to face the criticism of a populace who overwhelmingly supports it.

I feel sorry for the people of California if they have no statute in place that could help them challenge this landowner's blocking their rightful access to (what should be and in this case truly is) public property.

[SoCalDem]

4. When "treasures" are sold to individuals, this is what happens.

While he cannot dam the water (riparian rights), he can surely cut off access to whatever's on his land.. It sucks, but it's legal. The Forest service should check into eminent domain, if they want public access.

[Angry Dragon]

11. The falls and water are public

the trail they use is private.

If someone got hurt on his property they would sue him, they litter, I am trying to see both sides and not sure what the answer is.
He has rights

[SoCalDem]

14. He has a right to keep people off the property. The forest service needs a new trail

or they need to buy back land he now owns.. or keep people off.. A court will make the decision someday.

[struggle4progress]

46. Old traditional law might differ on that point, recognizing a right of access

established by long use

[Ruby the Liberal]

16. Option 1: Create a new, safe passage from a different access point

Option 2: Have Mr. Family Trust do the right thing and turn over that narrow section of his property to the state/county as a good will gesture (tax writeoff).

He can fence the balance of it off.

[papadog]

24. Option 3 Exercise "Eminent Domain Laws" for the good of the Taxpayer

[ProgressiveProfessor]

27. Not sure it would pass court muster at this point

[Xithras]

70. Eminent domain would be an incredibly expensive option in this circumstance.

You're talking about a relatively large property that spans a relatively rare year-round creek in Southern California, only a short drive from Los Angeles. The property value is easily in the millions, and ED's are required to pay the owner at the current fair market value.

A better solution would be to work with the owner to develop a permanent easment through his property in exchange for some sort of benefit. Hawaii does something similar, where property owners are given a property tax deduction if they permit the public to access beaches across their private property.

[Xithras]

74. Access from another point isn't much of an option either.

I looked up a terrain map of the area, and these falls sit in the bottom of a fairly steep canyon area. You can currently only access them from the bottom. There is a dirt Forest Service road that crosses the canyon another 5 or 6 miles upstream that could potentially be used as the jumping off point for a new trailhead, but the resulting trail would have an elevation change of over 3000 feet from the trailhead to the falls. Only the strongest of hikers could make that trek.

[ProgressiveProfessor]

83. Its already considered a tough hike

[howaboutme]

35. Wait folks!!! This is only the start.

Wait folks. The oligarchs will soon be offered, or will buy the commercial rights, or 99 year leases, or our national park jewels and other public assets outright, from our corrupt government. The "pressure" to reduce the deficit will "force" our corrupt government's hand and they will push this issue at all costs for their friends.

These mxthxr fxcking bankers on Wall Street and in the Fed Reserve had already figured out that creating a bubble and then crashing it will result in putting public financing under major stress and public assets on the auction block, and exactly as it will do, and as they did in Russia.

They were the same ones that pushed for our perpetual wars in Iraq and Afghanistan and who knows about 9-11?

Standby for further developments.

[Duer 157099]

5. Sigh.

[Liberal_in_LA]

7. They are going to have to helicopter in

[Ruby the Liberal]

12. Wow - that is gorgeous!

I wonder if there is an alternate access that can be made into safe passage to the site?

[Ruby the Liberal]

8. Five Man Electrical Band - Signs

http://www.youtube.com/watch?v=ivKuL3AMVv0

And the sign said,
"Long-haired freaky people
Need not apply."
So I tucked my hair up under my hat
And I went in to ask him why.
He said, "You look like a fine upstandin' young man.
I think you'll do."
So I took off my hat and said, "Imagine that.
huh , me workin' for you."

Whoa, sign, sign.
Everywhere a sign.
Blockin' out the scen'ry.
Breakin' my mind.
Do this. Don't do that.
Can't you read the sign?

And the sign said,
"Anybody caught trespassin'
Will be shot on sight."
So I jumped on the fence and I yelled at the house,
"Hey! What gives you the right
To put up a fence to keep me out,
But to keep Mother Nature in?
If God was here, he'd tell you to your face,
'Man, you're some kind of sinner.'"

Sign, sign.
Everywhere a sign.
Blockin' out the scenery.
Breakin' my mind.
Do this. Don't do that.
Can't you read the sign?

Now, hey you, Mister, can't you read?
You got to have a shirt and tie to get a seat.
You can't even watch. No, you can't eat.
You ain't supposed to be here.
The sign said, "You've got to have a membership card
To get inside." Uh.

And the sign said, "Everybody welcome.
Come in. Kneel down and pray."
But when they passed around the plate at the end of it all,
I didn't have a penny to pay
So I got me a pen and a paper
And I made up my own little sign.
I said, "Thank you, Lord, for thinkin' 'bout me.
I'm alive and doin' fine."

Whoo! Sign, sign.
Everywhere a sign.
Blockin' out the scenery.
Breakin' my mind.
Do this. Don't do that.
Can't you read the sign?

Sign, sign.
Everywhere a sign.
Sign, sign.

[Liberal_in_LA]

9. haven't heard that song in a really long time

[Ruby the Liberal]

15. I always loved that song.

It immediately came to mind when I read your OP.

Family trust from developing land from Moneterray to San Diego? Time to give back and turn the passage over to the county/state for free.

[TransitJohn]

17. This sort of thing happens often where I live.

Usually, it happens because people won't stop fucking littering and it finally pisses off the old codger who owns the land.

[Liberal_in_LA]

19. People can be pigs. I've seen families get up from a picnic in the park and leave trash right where

it lays, despite the fact that trash cans are nearby.

[closeupready]

18. Frankly, I sympathize with him.

Most of us like to think we would behave well, given access to the pond. But many people will leave beer cans and bottles lying about, shit without burying it, leave used condoms around, have long, loud parties. I honestly see it his way.

If they want to eminent domain it, go for it. But we here all know that ain't going to happen, now or ever.

[realisticphish]

20. yeah, I really do

We have hunters who trapse all over my parents property, and leave shit like shotgun shells, pop cans (no beer cans, yet), cigarette buts, and various other hunting detritus like salt blocks.

Perhaps the park service could agree to maintain the trail on his property; that might be a fair middle ground.

[ProgressiveProfessor]

23. Best choice is alternative access

It would kill the easement claim if there is another route to the spot.

[realisticphish]

26. true

does anyone have a link to a map of the location? I'm curious whether there is no other access (even if there's no trail there now) or if it's just a matter of convenience for the park service

[LynneSin]

65. Cigerette butts are the worst - especially if there hasn't been rain in a few days

There are still plenty of smokers who think nothing of just pitching their butts without ensuring they are properly extinguished. Back when I lived in Pennsylvania I remember driving home one night and seeing fire along the side of the road. Turns out it was some asshole who pitched their butt out the window and we hadn't had rain in like 5-6 days.

I realize every DU smoker will claim "But I'm not that type of smoker - I always make sure my cigarette butts are extinguished". But it's not just DUers who might hike on these trails.

[Trachimbrod]

40. The slobbiness of American turds can hardly be underestimated...

We bought our house on the shore of a very nice lake and we never ever have restricted anyone from picknicking or even camping down at the shoreline but the last few years, they have brought their slob friends and they leave behind all kinds of cans, bottles (often broken), used condoms, empty potato chip bags and other assorted shit which we go clean up almost every day.

Does our obligation to human charity extend to cleaning up after shitbags like this? We've run out of support for assholes. Sorry.

[depakid]

48. No need to do eminent domain- the public already "owns" an easement

[Occulus]

56. It wasn't an official trail

Does the property share a border with actual public land? If so, there may be an argument for an easement.

Maybe Google Earth could help us with this....

[depakid]

60. Offical has nothing to do with it

The key words on that bit are open and notorious.

Any California Lawyer can crack open Witken and find the rest for themselves.

Buzz is going to lose this one- and would do well to make a deal with the interested parties.

[Robb]

72. Right.

We'll see.

[Xithras]

76. A prescriptive easement may not apply here.

A prescriptive easement presumes that the landowner has not challenged use of the property and has allowed open use of the land until the easement was officially filed. Because the landowner has been continuously posting the property as private for years, and has been chasing trespassers off the land for more than a year now, it will be very difficult to make a case for prescription. This isn't a case where someone attempts to improve an implied easement and an absent landowner suddenly objects, but a case where the landowner has been attempting unsuccessfully to eject trespassers for years.

It is really closer to adverse possession, but adverse possession requires exclusivity, which can't be claimed by the public.

The problem here is simple. If the people or government had moved to establish a legal easement years ago, before attempts were made to blockade the property, it really would have been a slam dunk in court. Because no attempt was made to establish a legal easement until after the property owner had already been posting and blocking access to the property, while also chasing away trespassers for YEARS, the landowner can now claim that the easement was not implied and that public use has been challenged regularly as required by the law.

The landowner also has another major defense here. The falls are surrounded by national forest land on multiple sides. His actions in blockading his property aren't isolating access to the falls, but merely require that the forest service build a proper trail that does not bisect his property. His possession of the land does not block access to the falls, but simply blocks the current route. The fact that the falls can be accessed via unrestricted public lands in other directions strongly undermines any argument that an easement across his land is required. There is no necessity.

[Tikki]

21. It really is a beauty in a somewhat baron (sic)..

backdrop...

Been there a few times.


The Tikkis

[ProgressiveProfessor]

22. Well, I am in a similar situation.

People used to park, camp, and traverse my property too. The access my property provided was not centuries old and its was easy access (but not exclusive access) for ATV riding on public land. I got tired of chasing people off and the problems, including threats associated with it. I put up the mother of all security gates and got the local off road shops to quit giving out maps that had my place on it and telling people it is BLM land. Since the road was not cleared to my property until 1980s, I am immune from the kind of legal issues Bonsall has to deal with. Couple of posts about this in my journal.

[flvegan]

25. I don't know about CA, but in Florida this would be one hell of a court battle.

Likely with the public winning and the landowner having to let folks use the property as an easement.

[tammywammy]

28. Then would the landowner be relieved of any lawsuits if someone's hurt there? n/t

[Ruby the Liberal]

29. An easement classification would hold the property owner fully responsible

while restricting what they can do with it.

[tammywammy]

30. I don't like that solution

I don't think if it's given public access that he should then still be liable if someone's hurt on his property. The Forest Service should build an alternative access trail.

[Ruby the Liberal]

31. Agreed.

[ProgressiveProfessor]

32. Bet the current owner would fund all/part of it as a write off

However, the Parks/Forest guys are getting serious budget cuts too, so long term upkeep could be a problem

[happyslug]

39. Responsible for WHAT???

In most states (In all states, but I want to be careful) the only duty a person has to a trespasser is to tell that trespasser of any danger created by that land owner (or a previous owner). Any danger that is inherent in the land or other naturally caused (Called within the law "An Act of God") the land owner is NOT responsible. The path can be considered naturally occurring for most such trails follow "Deer Trails" or other paths first used by animals (it can also be viewed as man made).

Now, if the people using the trails are "Invitees" instead of "Trespassers" then the land owner has to inform such "Invitees" has to inform such "Invitees" of hazards known to the land owner. Now the difference between an "Invitees" and a "Trespassers" is that the land owner has the opportunity to make money off an "Invitees". The classic "Invitees" is someone who enters a store. I do not see how the land owner could make money off people using this trail and thus the trail users are Trespassers not Invitees and thus the only duty the land owner has is to inform the Trespassers of any hazards made by the land owner.

Now, any lawyer will tell you his job is not only to tell his clients what are their rights but also how to avoid litigation. In this case a factual dispute can occur as to if the trail user is an "Invitee" or a "Trespasser". Another area of dispute is if any of the improvements on the trail was done by the landowner or a previous landowner (as opposed to something done by another trail user which was NOT done by by the landowner or with the permission of the landowner). Thus there is a lot of litigation possible with this trail and I expect the land owner to win, but the land owner wants to avoid litigation and the best way to do that is to tell people to stay off the trail.

Now if someone has an easement, that person is not an "Invitee" or a "Trespasser" for the easement is a property right. As a right to use the property (Through an easement is a property right restricted to use of the easement for purposes of travel) the duty to maintain the trail is up to the user unless the owner of the land the easement goes through does something that injured that Easement. Again no liability for the land owner for the easement is to maintained by the owner of the easement NOT the land owner. The land owner only duty is to do damage to the easement. Thus no liability if the land owner does nothing.

Now, again a lawyer's duty is to tell a client how to avoid litigation in addition to his or her rights. The grounds for litigation involving an easement can be any what the land owner did on his own property did harm to the easement, it can be actual damage to the easement etc. All of this is capable of being a source of litigation and to minimize that risk the best solution is to deny that an easement exists and if some one claims an easement exist to litigate that issue (Until a judge says the easement exists the law presumes it does not). Remember easements can be registered with the County Land Records but if it is an easement by prescription no such record would exist. The only way to get a legal record of the easement is for someone to tile an action in court to get a court to recognize the easement. Such litigation is rare but not that extensive, it leads to lost of exclusive use of property but no lost of money. On the other hand if nothing exists in the court records the land owner can claim no such easement exists. That avoids the whole issue of liability for use of the trail, just cut off everyone from using the trail, no one uses the trail, no can get injured, no one can sue and thus avoid litigation. Thus the safe policy is to cut off the trail. Thus the safe policy is to cut off the trail, even if the land owner runs almost no risk of any real liability.

[ProgressiveProfessor]

44. I wish what you say were true

There have been multiple cases where trespasser were injured while engaged in questionable activities who have sued and won.

[happyslug]

51. Every time I have looked into those cases, they were "booby trap" cases

Some land owner was tied of someone entering his property so he set up a "bobby trap" that ended up injuring the trespasser. Since the "Booby Trap" had been set up by the land owner, the land owner had a duty to inform any trespasser of the "Booby Trap" since it was something the Land owner did to the property. Do to the fact the trespasser was NOT informed he suffered an injury and under the law the land owner was liable for he had set up a done an "Improvement" to the land (i.e. the "Booby Trap") and the trespasser was injured do to the "improvement".

In older cases, the doctrine of "Attractive Nuisance" was used, i.e. some change in the land that lead to trespassers being injured when it was clear that the improvement would attract people (mostly children). Railroad turn tables were the classic "Attractive Nuisances", children were drawn to them as a potential toy and were injured for they were NOT toys. Most surviving Turn Tables are lockable i.e. can NOT be operated with out a Key thus turn tables are NOT the problem they were in the late 1800s, but again it was a large mechanical device left out in the open unguarded, that children would go to a play on and be injured. If a person keeps such items lock down not a problem, it is when such large items are left unattended AND not locked down that they cause problems (and given most Insurance companies today, a rare occurrence for the Insurance companies insist of adequate protections on such items before insuring any property). In simple terms not a problem unless someone is stupid.

As to roads and trails, visual inspection by the trespasser is assumed to have occurred. Thus if you dig a ditch and do NOT put a wood horse over it or other notices to people of the ditch, the land owner is liable for any damage if a trespasser is injured by the ditch. On the other hand if adequate warning was given (Such as a wooded horse) then the trespasser is presumed to have assumed seen the warning and ignored it at his or her own peril. This is true even for young children as long as it can be shown they were of an age to understand to stay away from known hazards.

I point out the above to show how rare such cases are. Everyone heard of them, but the reason they are news is such cases are rare. The famous comment on what is news "Dog bits man is NOT news, man bites dog IS NEWS". What happens every day is NOT front page news, but what occurs and shock people IS NEWS. I have read reports of burglars willing cases against home owners and everyone complaining why that happens. When you look into the case it always end up a a bobby trap case, not some burglar who was bitten by the family dog, or fell down the steps after slipping on a child's Toy. The problem is the news account drop the bobby trap angle and report the lawsuit. Then someone takes the case and add false details to make it sound worse then it was. The is complicated by most people having home insurance (Insisted by Mortgage companies). When a home owner has insurance, the home owner turns any claim over to the insurance agent who refers it to the Insurance Company whose attorney's determine is it cheaper to pay off the claim or fight it. Most cases do not even get to court and those that do get to court, are settled while before any trial. It is rare for such a case to get to trial and those tend to be the bobby trap cases for these tend to be the actions NOT covered by Insurance and the home owner refuses to take a reasonable compromise (or the case just go to court to enter a Judgment for the Home Owner had no defense thus no actual trial). Thus most of the stories you hear are what are called "Horror Stories" i.e. the rare exceptions to the general rule based on the facts of those cases NOT what happens 99% of the time.

Just a comment on what I have seen, most cases where someone is trespassing and is injured AND then sues the land owner and wins, it is more then just being on the property that caused the trespasser injuries, it is almost always a booby trap and in those rare cases were it is NOT a bobby trap, it involved construction that the land owner did NOT properly set up signs and other indications that people were entering a dangerous area (And the only time Land Owners need to do that is if the danger is the result of the land owner actions NOT nature).

[ProgressiveProfessor]

58. I am painting with a bit broader brush

- Criminals who sue people who shot them in self defense
- Falling through skylights during a theft (Bodine though that was settled)
- Suing for injury while trespassing in construction areas
There are others, though I have not checked snopes.com about them either. You may well be right about them being rare enough to be newsworthy and that is why they stick in one's memory.

You brought up liability even if there was trespassing. That is a point that bothers me. If someone jumps a gate or otherwise takes active measures to get around reasonable security measures and gets hurt, I can not see how the property owner could be found liable.

I agree with you about the booby traps. IIRC the defining case for that was a set gun used in a cabin.

I am also in a similar circumstance to Bonsall. My property was used for a time by some as camping area and short cut to BLM land, mostly for OHV use. I had all sorts of problems getting people to stop doing it, or even leave. I had it posted for trespassing and no parking/camping. I started having vehicles and trailers towed. There were also confrontations and the sheriff asked/insisted I stop doing that for fear of violence. I then spent a fair amount of $ and put up the mother of all security gates. So far it has worked out. It also helped when the local off road shops quit telling people my driveway was a BLM access road. One of the key reasons I did it was liability due to terrain and the critters. My attorney was clear that if I did not take serious and practical measures to keep trespassers out, sooner or later someone would get hurt and I would be sued.

[depakid]

50. Cutting off the trail is going to cost the client money to litigate the easement claim

which he will lose under these facts.

Assuming that he contests the case.

[happyslug]

54. To get an Easement by Prescription, you have to hold yourself out as having the easement

Mere trespassing does not and can not give someone an easement. An easement by prescription is when a land owner permits someone to use an easement without objections for whatever period of time set by State law (In the East it tends to be 21 years, but some states, drop that down to 10 years). The use of the Easement can not be a rental agreement to use the easement, it can not be trespassing even if the land owner knows about the trespassing and does nothing about it. What is required is that people hold out the easement as THEIR EASEMENT to everyone in the area, including the owner of the property. The fact that the trail has existed for over 100 years is not enough, if it has been 100 years of trespassing.

Now easement by implication can also exist, if it can be shown that both plots of land was owned by one person years ago and the only way to get to the Federally owned lands is through the privately owned land. With no other assess, then the law implies an easement existed when the two property was divided (Please note the US Supreme Court has ruled that the mere fact the US Government owned ALL of the land of the West at one time or another does NOT give rise to any easement by implications, the Court told the Federal Government that since the US Government has the right of Eminent Domain that is the better way to solve such lack of easement NOT for the court to find an easement by implication). I only bring this up in case just to point out that the easement here must be by prescription since it can not by implied by the fact the Federal Government owned all of the land at one time nor are they any easement created by any deed. Thus easement by prescription is the only legal doctrine left AND such an easement can NOT be created by trespassing.

Most Easement by Prescriptions cases involved cases where an adjacent land owner claims it always had an unrecorded easement and the land owners whose land the easement goes through denies that such an easement exists. Easement by Prescription solves such disputes with its holding that an easement exists if some one uses the easement and held it out as his right to use such easement for 21 years. Whether an contract ever set up the easement is no longer a factor after 21 years. If the easement user has used it for 21 years and the land owner NEVER tried to deny him use of the easement, then Easement by Prescription kicks in and ends the dispute. If on the other hand the land owner is able to show that the easement user, had use of the easement by permission only OR was always trespassing, then Easement by Prescription does NOT kick in and the existence of the easement must be proved in court based on the deeds of the parties.

Sorry, this case sounds more like the path existed but no one ever have anyone the right to use the trail, people just did it. That is trespassing and as a general rule does NOT gives anyone a Easement by Prescription.

[depakid]

61. You need to open up Witkin or have a look at one of the CEB's

This is as clear a case as you'll find in California under these facts.

[happyslug]

69. I am giving basic easement by prescription law

California may have its own special rules. I was just giving basic common law rules as to such easements. I should have noted that each state can have their own sets of rules as to easements and under such general rules as to easements this does NOT sound like it is enough but California may have rules that makes it easier to set up an easement.

[backscatter712]

52. Could the owner put up signs?

Signs that say "Stay on trail!", "No camping!", "Use trail at your own risk!", "Not responsible for accidents!" and absolve himself of liability?

[ProgressiveProfessor]

57. Signs alone are never enough. Signed releases are not even ironclad

[depakid]

62. What that implies is of course disingenuous.

though one suspects you know that....

[flvegan]

33. No, however

a smart landowner in this situation would create an Easement Agreement with the park dept that would insist upon the park dept having to maintain the access and that they would assume any liability for injury, etc by any member of the public using that area to access their space. It doesn't absolve the landowner from any lawsuit but it would likely vastly limit his exposure. I've seen this sort of agreement come up a few times.

[tammywammy]

36. Thanks for the info. n/t

[NutmegYankee]

82. Some states, Connecticut for example, remove the landowner's liability.

The law relieves you of responsibility and liability if a hiker is hurt on a trail crossing your property.

[ProgressiveProfessor]

85. Land and water law is dramatically different between the east and the west

[Township75]

34. How about we discuss what is good for the environment?

It's more than just the land owner, and the public. There is an ecosystem here, and generally it does better with less men and women around leaving trash, being loud, and starting fires because they just had to light up a joint or cigarette.

[depakid]

47. He's going to lose that case based on the facts

better to get some money out of it- but the fact is that dumbshits like "Buzz" won't figure that out- and have to be dealt with via the heavy hand of the law- whereupon they will whine and complain as if they were some sort of martyr.

Seen Buzz's type a thousand times.

[MadHound]

63. Frankly I don't blame this guy,

Having seen what the public does to trails, not to mention places of interest, I don't blame him for wanting to close off his property. And it's not about just the trash, noise and damage done either, but there is also liability issues to be concerned about. Somebody slips, falls on his property and he's got a liability suit to deal with. Even if he is never taken to court, the extra amount of liability insurance he has to carry is probably staggering. In fact I imagine that this is why he started running people off, his insurance agent probably threatened to jack up his rates on liability insurance through the roof unless he did get rid of people.

The Forest Service should do one of two things, either buy the land from this guy in order to keep the current trail open, or open up another trail.

[LynneSin]

64. It's easy to vilify this person but honestly, I can't blame him

If people are being abusive to the land with litter and other destruction - that could be annoying.

And the way lawsuits work, if someone was injured on his property they could go after him.

[NutmegYankee]

80. A state can fix the lawsuit aspect.

Connecticut law removes all liability from a private landowner who allows the use of his land for a state hiking trail. As someone who loves hiking the hundreds of miles of trails in the state, this law makes perfect sense.

There are also signs at the start of each trail, usually stating "This trail passes thru private land and is used only thru the courtesy of the landowner, whose rights must be respected. Start no fires, injure no vegetation, and leave no rubbish.

The CFPA (Connecticut Forest and Park Association) requests the following on it's website:

Members of the public should behave in a decorous and courteous manner at all times while using the Blue-Blazed Hiking Trails. Trail users should:
• obey all signs;
• stay on established trails;
• carry out everything carried in;
• wear appropriate clothing and shoes and be properly equipped and prepared;
• leave the trail in better condition;
• report problems or hazards to CFPA.
• not take flowers, vegetation, mushrooms, rocks, etc.;
• not disturb wildlife.

[LynneSin]

84. That's up to California to make those laws

If they do not exist then I think the landowner has ever right to want to keep trespassers off his land.

I'm guessing a few assholes spoiled it for everyone else.

[RT Atlanta]

66. Prescriptive Easement

I would think with the years of continued use that the public has acquired a prescriptive easement over the landowner's property through which to access the site.

[Dank Nugs]

68. I really hate greedy assholes

You know, when we first settled North America, the Indians didn't even recognize the concept of land ownership. No one should own any land, period.

[Robb]

71. LOL

[bl968]

73. This is what Eminent Domain was made for

A little Eminent Domain would go a long way here. Simply take the trail and a 14' right away around the trail; for public use.

[Arkansas Granny]

75. I can't say that I blame the man after I've seen some of the beautiful places

around here get absolutely trashed by people who litter and destroy property. I know people who own property adjoining the Ozark National Forest and they don't allow anyone on their land for those very reasons. It's really disgusting to go to a remote area to enjoy the beauty of nature only to find that someone has decorated it with beer cans, broken glass, old appliances, etc.

[NutmegYankee]

81. The worst is hiking up a ledge of basalt to find grafitti.

That just pisses me off. Absolute beautiful view, and some trashy person only thought to spray paint it.