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COMPLEXITIES OF ROAD AND BRIDGE ACCESSPRESIDENT'S MESSAGE 10/27/08
I believe it is important that we let people know that PLWA's mission is to help everyone who ever hunts and fishes or engages in other outdoor recreation activities in Montana to continue to do so. That includes those who are too young now or yet to be born. We are all volunteers and have no other motive.
I thought I'd give you an update on the draft legislation regarding stream access at county road bridges.
The latest version proposed covered the issue pretty well. Fences are said to be legal if they provide for passage from the road easement to the stream below high water mark. I see this as a negotiated item where fences on all four corners may not have passage or access facilities but there must be adequate access facilities on the corners necessary to reasonably get to the water's edge and move up and down the stream on either side.
All streams included in the Supreme Court Decision and subsequent legislation are included. That includes both Class one and Class two waters. Class one waters are navigatable waters where the state owns the river bed. Class two waters are those where the land under the river is owner by private landowners with an public easement created by the court and legislation.
The big problem I see with this draft legislation is the fact that it does not deal with roads established by prescription. More roads than one might think have become part of the transportation system without ever going through a petition process( where ten land owners requested that a road become a county road and the county followed a formal process to establish that county road). County roads almost always have a 60 foot wide easement. The width of easements on prescriptive roads must be determined by a court.
Seylor Lane, one of the three roads we challenged in the Madison County lawsuit, never went through the petition process. The other two are petitioned county roads.
There are, however, other historic events that can determine the status of a road and the width of it's easement . As example, Postal Roads and roads established by Revised Statute 2477 have easement width defined by law. Then there is the Curative Statute, effective from 1947 to 1959, that states that all roads used and maintained by the public are public highways with a 60 foot easement. All this is fodder for lawyer types.
So we have ended up with prescriptive roads that have become part of the county transportation system. They accommodate school busses, emergency vehicles,cattle trucks, and stock drives and the width of the road easement has never been determined. Our opponents in the lawsuit contend that easements on such roads are only a few feet wide and narrow at bridges. How do you even plow snow off a road with a twenty foot easement without trespassing?
So now you know something about the complexities of this road and bridge business.