A CASE WITH STATEWIDE IMPACT
In 2004, Mr. James Cox Kennedy, a major stockholder in the Cox Communications empire and owner of a 3,200 acre ranch on the Ruby river in Madison County took action to stop the public from entering the river on his property. Three public road bridges cross the Ruby river on the ranch and had been used frequently by anglers for decades. Fences at the bridge abutments on Duncan Road, Lewis Lane, and Seyler Lane were wired up to keep people from accessing the river – including electric fences at some places. This infuriated local anglers and floaters who organized a symbolic “float in” to bring attention to the situation. PLWA, not wanting to see this go unchecked brought action against the Madison County Commissioners to require them to stop Mr. Kennedy’s actions. The lawsuit demanded that the county recognize that the road right of way did not narrow at the bridges and was in fact the statutory 60 ft. This is as per Montana Attorney General Joe Mazurek’s ruling of May 2000 . It also asked that the court recognize that fences to the abutments were encroachments of the right of way under existing Montana statutes. Mr. Kennedy brought a counter claim in the matter and a watershed case was in the making. Joining Kennedy as intervenors were the Montana Stockgrowers Association and the Hamilton Ranches.
On September 30, 2008 , Judge Tucker ruled in favor of PLWA that the width of road right of way on Duncan Road and Lewis Lane was indeed 60 ft. He also ruled, “that the public may utilize any portion of the 60 ft right of way regardless of the Ruby River Intersection With it subject to the lawful management by the Madison County Commissioners.” The easement is 60 feet in width unless specified in the original acceptance document issued by the county. It follows then that there is no pure private land within the width of the easement and lands therein are subject to the easement provisions which allow public passage. The fact that the river bottom is owned by the landowner does not prohibit the public from accessing the river where the road and water easements intersect.
The judge did not rule on the width of right of way on Seyler Lane, given that it appears to be a prescriptive easement. Thus, the Seyler Lane bridge right of way issue will go to trial.
He also ruled that the fences to the abutments were not encroachments because the commissioners had discretionary power to manage county roads and highways. It would follow that although the county commissioners may authorize fences to be attached to the bridges, the fences do not constitute a boundary between public and private land, as contended by the landowners.
There are related issues which deserve comment. Although not mentioned in the decision document, it follows that:
I. There can be no “No Trespassing” signs or orange paint within the 60 foot right of way.
2. Since county commissioners authorize the fences on these easements they have accepted a certain level of liability and must assure that the fences are constructed in a manner which will not impede passage or will not subject the public to an unreasonable safety risk when exercising their legal right to access the stream.
The ruling in this case, led directly to the passage of HB 190 in the 2009 legislature, which , in effect, put the judge’s ruling into law.
( LEGAL COSTS FOR THIS CASE ARE SIGNIFICANT . IF YOU WOULD LIKE TO AID IN THIS VITAL EFFORT, SEE THE “DONATIONS” TAB ON THE LEFT. MARK YOUR CHECK FOR THE BRIDGE ACCESS LITIGATION FUND)