by Andrew Johnson
On January 16, 2014 the Montana Supreme Court overturned a lower court and assured public access to the Ruby River from bridges on land owned by Atlanta media mogul James Cox Kennedy. The decision sets a precedent that validates all Montana stream and bridge access laws. The Court affirmed a previous decision that two of the county road bridges – Duncan Road and Lewis Lane – have a 60-foot wide public easement intersecting the high water mark of the river. This is the decision that led to the Montana Bridge Access law.
What’s new is that the court essentially threw out the District Court ruling on the third bridge – a bridge on the Seyler lane road . The lower court had mistakenly ruled there was no recreational access on the bridge because it was on a road created by prescription or regular public use and recreational use was not a basis for creation of the prescriptive right -of- way.
On Seyler Lane, the case was sent back to District Court with instructions to determine the width of the public road right-or-way which had been established by prescriptive use. Significantly, the Court held that once a prescriptive easement is established, access extends to all public uses including recreational use.
The Supreme Court justices rejected the District Court ruling that a secondary easement existed to accommodate maintenance by state and county crews and recognized recreation travel as a legitimate use to help qualify a road for prescriptive easement status.
The Court also emphatically upheld Montana’s stream access law, stating -that the State owns all the waters in trust for the People . . . and that a riparian owner takes his property interest subject to a dominant estate in favor of the public. -
John Gibson, President of PLWA, stated -Today’s ruling from the Montana Supreme Court confirms once again that our streams are public resources, and not the exclusive playgrounds for the select few. The public’s right to wade or float any river or stream in the state has been recognized, as well as the right to access those streams at bridges crossed by public roads. We want to thank Montana Trout Unlimited and the Montana Wildlife Federation as well as our loyal members for their contributions.
-We have been involved in this case for over ten years and this decision has justified our efforts,- Gibson says. He went on to say that -Much of our success is due to the great work of the Goetz Law Firm in Bozeman who lead us thru the legal maze surrounding access to the public waters of Montana.-
What does all this really mean ?
The basic outcome is this: If there is a public easement on a county bridge, whether it’s through a deed, petition or prescription , the public can use that easement to access the stream, provided it is physically possible to reach the area below the high water mark from within the easement. No more “Keep Out” signs.
In the absence of information to the contrary, if a bridge on a rural road is maintained by the county, the presumption is that it is either a county road or a prescriptive easement and therefore there is legal access at that bridge.
Maybe it will cause some Rolex Ranchers and misguided legislators to quit messing around with established law. The people have spoken and the law has spoken.
Stay tuned as the implications reverberate.