A situation developing in Eastern Idaho demonstrates how the natural inclination of farmers and ranchers to be neighborly could put their private property at risk.
It also demonstrates that local officials can be just as heavy-handed as other bureaucrats when it comes to allocating other people’s property to achieve some perceived greater good.
In Idaho’s Bannock County, a grass-covered farm road wends its way across four parcels to the U.S. Forest Service’s Bell Marsh Creek area near McCammon. For decades, owners have allowed locals to use the trace to access their favorite public hunting grounds.
For several years there was a gate across the road. As long as people didn’t let the cows out and picked up after themselves, the owners turned a blind eye to the trespass.
That informal arrangement worked fine, though in recent years more people using the road have been less respectful of the unwritten rules. But the real trouble started when the Forest Service’s Pocatello office asked surrounding counties to clarify their lists of active public land accesses.
While the Bell Marsh Creek access appeared on Forest Service maps, owners of the property had never granted a formal easement to either the feds or to Bannock County. More importantly, neither had ever offered up any payment for such an easement, and the owners have continued to pay full taxes on the trace.
That isn’t stopping the Bannock County Commission. Ian Service, the county’s general counsel, has recommended that the commission approve validation, arguing a prescriptive easement exists because people have been using it since at least the 1940s.
Prescriptive easements have their origins in English common law. In this country the practice is recognized by the individual states with varying stipulations.
A prescriptive easement is generally proven to exist if its use is open and apparent, and if the use has been continuous for a specified period of time with the owner’s knowledge.
In this case, the owners dispute the claim. T.J. Budge, an attorney representing one of the property owners, said the “road” has been gated for years, and neighbors have long sought permission before using it.
If the commission declares the path a public access, the various parcels it runs through lose value and the owners lose certain uses an easement precludes. One of the owners says he’ll be in violation of the terms of his Conservation Reserve Program contract.
The county conducted a hearing earlier this month, and plans a second in November. In the meantime, various ag interests are trying to rally local land owners.
The case should remind farmers and ranchers that it is their responsibility to guard their private property rights. Left unchallenged, even innocent encroachments can lead to trouble for owners. The unintended consequences of neighborliness can be severe.