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Final Portion of Madison County Litigation

January 22,2012

The Seyler Lane portion of the Madison County Lawsuit was heard in early January of 2012 in the Montana 5th judicial district - Madison County district court with Judge Tucker presiding.

The original Madison county suit involved bridges over three bridges on the Ruby River. In 2008 the court ruled for PLWA on two of the roads –Duncan Road and Lewis Lane - which were established county roads. The court ruled that the right of way did not narrow at the bridges and thus the stream access law was in full force at the bridge abutments. However, the court did not rule on Seyler Lane because of its prescriptive status. These bridges were on roads crossing the property of James Cox Kennedy, an Atlanta communication mogul, who joined in the suit on the side of the county.

Seyler Lane is an old established road – probably used for over 100 years by all sorts of uses. It has also been maintained by the county and bridges on the road have been built by the county. It is clearly a “public prescriptive easement” and that has been “stipulated” (agreed upon) by the other side. So the prescriptive status is not an issue.

The key issues for Seyler lane are the “scope” and width of the easement created during the prescriptive period.

SCOPE. The opposing attorneys argue that the scope of the easement is just for ordinary vehicular travel for a 16ft right of way. PLWA contends that the scope of use on the easement includes all legal uses such as herding cattle, road maintenance involving the borrow pit, recreational use, etc., - all of which require much more that 16 ft.

WIDTH. 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.

WHAT THIS MEANS. The stakes are high. There are many, many roads used by the public and maintained by the public which are neither fish nor fowl. They have not been officially accepted by the county as county roads but have also not been through the courts and found to be public prescriptive easements. If PLWA prevails, it will set a precedent for all public prescriptive easements, and the bridge access law will presumably apply – as it does to all county roads. If the other side prevails, it could mean years of litigation on a case by case basis and the presumption that the bridge access law does not apply to public prescriptive roads.

As with all litigation, costs will run high. With your generous support we have the funds to at least start the case rolling, but we need all the help we can get. This will affect stream access in Montana for generations.


Access fight resumes
By Nick Gevock of The Montana Standard | Posted: Wednesday, January 11, 2012 12:00 am

VIRGINIA CITY — A court case over accessing streams from rural bridges that has simmered for years continued before a judge in Virginia City Tuesday after sitting dormant since 2004.

The Public Lands/Water Access Association sued Madison County and James Cox Kennedy, a multimillionaire media mogul and ranch owner near Sheridan, in 2004. The access group said Kennedy’s fencing of the Seyler and Lewis lane bridges amounted to shutting off anglers from public roads to the Ruby River.

Kennedy contended the bridges aren’t suitable for safe public access and opened him up to liability if someone was injured using the steep embankments.

The lawsuit prompted the Legislature in 2009 to pass a law guaranteeing the public access rights to streams from bridges on county roads. Landowners can fence up to bridges, but must provide a reasonable access point.

But the Madison County case, while dropped for Lewis Lane because it’s a county road, remained alive on Seyler Lane. That’s because it’s not a county road, but rather one based on a prescriptive easement after decades of use by area ranchers to move cattle, as well as by the public.

Both sides agree there’s a prescriptive easement for the route, located several miles northwest of Sheridan.

But Kennedy contends it is a narrow one that only applies to the road surface and doesn’t give any stream access rights to the public. The PLWAA, however, argues the easement applies to the borrow pit beyond the roadway and therefore gives the public the right to use the right of way to get to the river.

Tony Schoonen, of Butte, a longtime PLWAA member, testified Tuesday in Virginia City district court during a bench trial that he long used the bridge while working as a ranch hand to move cattle. And that didn’t just include the road surface.

“They were all over the borrow pits trying to get a mouthful of grass,” he said.

Schoonen also recalled using the bridge since the late 1940s to access the river to trap, fish and hunt waterfowl along the Ruby River.

But Judge Loren Tucker in the morning struck down PLWAA’s contention that recreational use constituted a prescriptive right under Montana law. Tucker during a break in testimony reviewed state Supreme Court rulings and rejected PLWAA’s contention. He said the case is centered on the width of the right of way.

“This judge is simply unable to find a basis to use recreational use to establish a right,” he said. “I’m not aware of anybody’s dispute of people’s right to use the bridge; the dispute seems to be about terra firma around the bridge.”

But Devlan Geddes, a Bozeman lawyer representing the group, worked to show that the prescriptive easement on Seyler Lane goes beyond the road surface. One of the exhibits included a survey map showing the road as a county right of way that Kennedy had signed.

And Schoonen testified under cross examination that through the years he never asked for permission when putting a boat in at Seyler Lane bridge.
“It was in the right of way,” he said. “I didn’t step onto any private property.”

But Peter Coffman, an Atlanta lawyer representing Kennedy, brought up editorials that Schoonen has written over the years advocating for stream access rights. Coffman contended that makes him a biased witness.

Schoonen said he was unapologetic for sticking up for the public and that Kennedy’s ranch workers have harassed anglers often.

Colleen Dowdall, a Missoula attorney also representing Kennedy, put registered surveyor Ken Jenkins on the stand to question the official certificate of survey that shows Seyler Lane as a county right of way.

“Certificates of survey cannot by themselves establish a right of way,” Jenkins said.

The testimony is expected to wrap up Wednesday before it goes to Tucker, who could take weeks to issue a ruling.

related articles

Ruby River Stream Access Victory
( 07/01/2016 )   7/1/2016PLWA, once again, has been victorious in the battle for the public's stream access on the Ruby River, from the Seyler Lane Bridge, likely the original stagecoach route from Salt Lake City, north to Virginia City and Helena.It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a public prescriptive easement right-of-way in Madison County.

"Dark Money" Brought to Light
( 07/01/2016 )   The June-July, Newscasts section of Fly Fisherman reported on the recent investigation by Montana's Commissioner of Political Practices, Jonathan Motl, into a dark money campaign that could overturn Montana's Stream Access.Fly Fisherman recounted the Montana Growth Network's campaign contributions to District Judge Laurie McKinnon's run for our Montana Supreme Court.

public land issues

Seyler Lane Update
9/24/2015Seyler Bridge Easement - More Than Just RecreationUpdate - Kennedys attorney requested a postponement of the September 21 hearing.

Tenderfoot - Four Years and Counting
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker.

    18 more public land issues

Madison County Bridge Suit



Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
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