THE FEDERALLY RETAINED EASEMENT
November 25, 2023
© James Beckwith
On May 26, 2023, the federal court in Wyoming rendered its decision on “cross-walking” over corners of private and public sections of land as shown in the figure above. The circumstances were intriguing. The defendants had fabricated a metal ladder allowing them to literally climb over the pinpoint intersection and thereby avoid stepping on the private land. The court rejected the land baron’s argument that he owned the air space above that pinpoint intersection.
Some observers claim that “new law” was created by the Wyoming federal court. Research, however, reveals that the U.S. government has had a long history favoring the traverse of private lands to reach adjacent public lands.
In Buford v. Houtz 133 U.S. 320 (1890) Buford, the owner of 350,000 acres of patented land sought to enjoin Houtz from trailing his sheep across Buford’s lands to reach 600,000 acres of adjacent public lands. Most of Buford’s land and all of the public lands were open, unenclosed and not fenced. The court first found that livestock grazing on public land was an implied license.
“We are of the opinion that there is an implied license, growing out of the custom of nearly a hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed and no act of government forbids this use.”
133 U.S. at 326
The court then determined that Buford lacked equity in making a request for injunctive relief:
“...we see no equity in the relief sought by the appellants in this case which undertakes to deprive the defendants of this recognized right to permit their cattle to run at large over the lands of the United States and feed upon the grasses found in them, while, under pretense of owning a small proportion of the land which is the subject of controversy, they themselves obtain the monopoly of this valuable privilege.”
133 U.S. at Pg. 332
This same federal policy was applied to public lands open for homesteading or sale but blocked by fenced private lands. Camfield v. United States 167 U.S. 518, 524 (1897) There, Mr. Camfield acquired all the odd-numbered sections in Morgan County, Colorado that had been granted to the Union Pacific Railroad as subsidies for the transcontinental railroad. Camfield fenced the perimeters of each odd-numbered section. This physically prohibited access to the even-numbered sections (20,000 acres) still open for public settlement.[1] Camfield was convicted for violating the recently enacted Unlawful Inclosures of Public Land Act (43 U.S.C. 1061; 1063; 1885) which conviction was upheld by the Supreme Court.
“... the (federal) government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers... It may open them to pre-emption or homestead settlement, but it would be recreant to its duties as trustee for the people of the United States to permit any individual or private corporation to monopolize them for private gain, and thereby practically drive intending settlers from the market. It needs no argument to show that the building of fences upon public lands with intent to enclose them for private use would be a mere trespass, and that such fences might be abated by the officers of the government ... To this extent, no legislation was necessary to vindicate the rights of the government as a land proprietor.”
167 U.S. at 524 (Emphasis Supplied)
The italicized language above is important. Separate and independent of the Inclosures Act, the court recognized the federal policy prohibiting barriers to accessing public lands adjacent to private patented lands or those on which claims (homestead; mining) had been made. This policy was enforceable against the settlers and claimants without the necessity of legislation.
In Mackay v. Uinta Development Co. 219 F. 116, 118 (8th Cir., 1914) the federal policy was applied to unfenced but patented lands. Uinta Development owned a vast number of patented acres in Wyoming which were unfenced and unenclosed. Mackay was a sheepman. He had his summer, spring and fall ranges on unfenced and unenclosed public lands located north of Uinta’s private lands. Mackay had his winter range south of Uinta’s private lands. Mackay sought to trail his 3,500 head of sheep across Uinta’s lands to reach the winter range. Uinta admitted Mackay’s right to graze on the public domain but warned him not to go over any of its lands to reach his winter range on penalty of trespass. Mackay traversed the private parcel anyway. Uinta recovered judgment at the trial level, which was overturned by the 8th Circuit Court of Appeals. [2]
“If the position of (Uinta Development) were sustained, a barrier embracing many thousand acres of public lands would be raised, unsurmountable except upon terms prescribed by it. Not even a solitary horseman could pick his way across without trespassing. In such a situation the law fixes the relative rights and responsibilities of the parties. It does not leave them to the determination of either party. As long as the present policy of the government (concerning public lands) continues, all persons as its licensees have an equal right of use to the public domain, which cannot be denied by interlocking lands held in private ownership.” (Emphasis Supplied)
In McKee v. Gratz 260 U.S. 127 (1922) the issue was again before the U.S. Supreme Court. There, mussels were taken from a local stream, boiled, their shells removed and the shells made into buttons. The stream was on Gratz’s land but in accordance with local custom McKee had traditionally roamed over the stream to fish, hunt and harvest mussel shells. The court held that McKee had an implied easement to enter Gratz’ property and had not committed a trespass.
“The strict rule of the English common law as to entry upon a close must be taken to be mitigated by common understanding with regard to the large expanses of unenclosed and uncultivated land in many parts at least of this country. Over these it is customary to wander, shoot and fish at will until the owners sees fit to prohibit it. A license may be implied from the habits of the country.”
260 U.S. at 136
In United States v. Curtis-Nevada Mines, Inc. 611 F.2d. 1277, 1283 (9th Cir.; 1980) the holder of 203 unpatented mining claims erected No Trespassing signs and erected physical barriers to prohibit recreationists from crossing his claim to reach adjacent public lands. The mining claims had been developed since 1970 but were minimally worked by their locator. Inspection by the BLM found numerous violations of BLM regulations as well as the Surface Resources and Multiple Use Act (Publ L. No. 84-167, 69 Stat. 367; codified at 30 U.S.C. 611-612; 1955) under which unpatented mining claims were required to allow traverse by recreationists. Curtis-Nevada challenged the constitutionality of that Act. The trial court restricted the class of recreationists to those holding express written permits and licenses. The 9th Cir. noted that BLM regulations (Camping on the Public Lands (1965) and U.S. Forest Service regulations (36 C.F.R. 251.1(a)(2) (1979) allowed recreational use without written permits. These created a “traditional policy” allowing public use without written, formal permits. The 9th Circuit reversed the trial court:
The Multiple Use Act was designed to open up the public domain to greater, more varied uses. To require that anyone desiring to use claimed lands for recreation must obtain a formal, written license would greatly restrict and inhibit the use of a major portion of the public domain. It is doubtful that Congress would intend that such use be dependent upon a formal permit, because the federal agencies do not generally issue or require permits for recreational use of public lands. To require a formal written permit would either put the public in a position of having to obtain permits but having no place from which to obtain them, or it would require the government to institute procedures to issue permits, a process which the government argues is burdensome and unnecessary. One of the clear purposes of the 1955 legislation was to prevent the withdrawal of surface resources from other public use merely by locating a mining claim. The inertia of the situation was previously with the mining claimant who retained exclusive possession of the surface of the claim until the location was invalidated by affirmative action. As to claims located after the 1955 legislation, however, the inertia works the other way. Essentially, the surface resources remain in the public domain for use as before with the exception that the mining claimant is entitled to use the surface resources for prospecting and mining purposes and that the other uses by the general public cannot materially interfere with the prospecting and mining operation. Thus, the vast acreage upon which mining claims have been located since 1955 or claims which, by operation of the statute, have become subject to the provisions of section 612(b), remain open for public use except for the restrictions imposed where actual mining or prospecting operations are taking place.
Curtis at Pg. 1283
The thrust of these discussed authorities is clear. Since the time of homesteading and mineral exploration, there is an implied easement held by the federal government over contiguous parcels of unfenced public and private lands allowing the public to traverse the private lands in order to reach the public lands. Thus, the mining claim (which was typically unfenced) gave the claimant exclusive use of the land for mining – but only for mining. Other members of the public had the right to cross the claim in order to reach other public lands for mineral exploration or, potentially, agricultural cultivation under the Homestead Acts of 1862 and its subsequent variants. Erection of fences does not diminish the public’s right as held in Camfield (Supra). The rights of the private landowner are subordinate to the rights of the general public to access surrounding public lands.
[1] “Corner crossing” occurs when a settler must step over the microscopic intersection between adjacent sections. In Iron Bar Holdings, LLC v. Cape, Et Al. (D. Wy., 2023WL3686793) such crossings were held not to be trespasses (including invasions of airspace above the land).
[2] The 8th Circuit is now the 10th Circuit. It has been held that 8th Circuit decisions are binding on the 10th Circuit. Boynton v. Moffat Tunnel Improvement Dist. 57 F.2d. 772, 781 (10th Cir., 1932). But see: Estate of McMorris v. Comm’r 243 F.3d. 1254, 1258 (10th Cir. 2001) (“...we have never held that the decisions of our predecessor circuit are controlling on this court.”)