Corner crossing
- Thread starter Billy
- Start date
I think the civil suit hinges on 4th Amendment "taking" of private property (the corner crossing) without "just compensation."
I kinda' like Zak's reference to condemnation by necessity for corner crossing. I have a hard time, more like an impossible time, believing that the federal government made those checkerboard land grants (originally to the railroads) so that private land owners could reasonably lock up access to public land, thereby privatizing public lands for their own exclusive hunting and recreational reserves. I think these landowners have pushed a technicality (the infinitely small corner) too far and have earned themselves the public condemnation of corners to achieve public access to public land. Perhaps the "just compensation" is that they have had the privilege of being land-locking assholes all these years while the legal situation is being sorted out.
But, a 4th Amendment suit would be brought against the government, not the trespassers. If the government (state or fed) grants access rights over the corners to the public, then the landowners might bring a takings claim against the government. I think the current civil suit is against the trespassers (I haven't read the suit, though).
Good point Zak. A takings lawsuit would have to be taken against the government agency responsible for "taking." If the gov't fails to prosecute or convict a trespasser, I'm not sure what civil action a landowner can take against a trespasser, except by proving "damages" from the trespassing that were not "justly compensated."
Whether or not the gov't prosecutes a criminal case, the landowner can bring a civil suit against the trespasser for the tort of trespass and seek one dollar in damages (or more if there were actual damage to the fence or some such) and an injunction against further trespass. ("Justly compensated" is only relevant to a takings claim against the government.) The problem for the landowner is that (if he wins the civil suit) the injunction will be effective against that particular trespasser, but not the whole world.
Allow me to geek out a bit. Trespass, according to William Blackstone, is “an entry on another man’s ground without lawful authority, and doing some damage, however inconsiderable, to his real property.” 3 William Blackstone, Commentaries 209. According to the Restatement (Second) of Torts, “[o]ne is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.” Restatement (Second) of Torts § 158.
Note two differences in the definitions quoted above. Blackstone’s definition requires “some damage,” a requirement that is explicitly absent in the Restatement’s definition; while the Restatement requires that the offender “intentionally” enter or cause a thing to enter another’s land, a requirement not specifically included in Blackstone’s definition. The important definitions, though, will be those set out in state statutes and case law in the jurisdiction where the civil case is brought.
I hope Backcountry Hunters and Anglers (or some other organization) has a good attorney and files a friend of the court brief in the civil suit to explain to the judge the importance of not locking the public out of our public lands.
Edit: I said above: "Or maybe the state/feds should condemn a couple square feet of the private lands at the corner to facilitate public access." That would for sure lead to a takings claim against the gov't, if not the condemnation were not "justly compensated." But, the fair value of a couple square feet of remote undeveloped land might be pretty low.
Not every square foot of land is of equal value. I'm guessing the obstructive landowner will claim that those square feet of his private land located at the corner are extremely valuable due to the access they provide to premium public land not otherwise available without the landowner's express permission. I can see a federal judge going either way on legal technicality, but I would hope the judge carefully considers the federal intent on these land give aways and whether or not the gov't intended that private landowners should be able to lock the public out of their public lands.
With the amount of attention this is getting and the potential stakes in the game, lots of lawyers and 'Friends of the Court' will most likely be involved. Then the appeals by whomever. With lawyers involved it gets expensive. Whoever finally wins and if they are awarded legal costs to be paid by the loser, it will cost someone a lot of money. The value of the land will seem minimal compared to those costs.
If the foot was lifted, defendant must be aquitted...
Corner crossing defense strategy