Your mission: go from blue squares to blue squares
without touching any of the red squares
Check out this Order from the U.S. District Court for the District of Wyoming in a case that presents a very interesting -- some might say metaphysical -- property issue; an issue we were not really aware of until one of our law students brought it up a few months ago.
The diagram above is from the court's Order, and depicts the "checkerboard" land ownership patterns in the relevant area of Wyoming. Hunters, who wanted to hunt on public BLM-managed land (blue) adjacent to Iron Bar's private property (red) needed a way to get to the public hunting grounds without trespassing on Iron Bar's private property. That meant no touching of the red squares.
The hunters' journey is called "corner crossings" because, well, they are crossing the land at the corners of the boundaries. Here are the actual parcels, and some of the corner crossings at issue (again, from the Order).
Of course, these lines on a map don't actually exist on the ground. As the Order notes, the "actual points of contact" for the parcels "meet at an infinitely small point" that "like a point in mathematics, are without length or width." Order at 2 (quoting Mackay v. Uinta Dev. Co., 219 F. 116, 118 (8th Cir. 1914)).
But the corners are marked and the hunters could locate at least the approximate location of these infinitely small points. "[T]he three hunters were met with two steel posts, each with a 'No Trespassing' sign, that were connected together with a chain, a padlock, and some wire." Order at 6. A locked "gate" that doesn't prevent anyone from actually getting from here to the other side of that chain, but nonetheless represents the corners and the private nature of the adjoining parcels.
The post in the ground between the signs is the location of the corner. Other than what is depicted above, "there were no posts, fencing, or buildings within one-quarter of a mile from the corner." Order at 7.
The hunters could not squeeze between the signs and the chain to get from one BLM parcel to another. What to do? No one seems to be watching, so how about just walking around? That would entail physically trespassing on Iron Bar's private property, and these hunters were very conscientious.
And here's where it gets metaphysical.
Did they try the Twister thing? No, "one by one, each grabbed one of the steel posts and swung around it, planting their feet only on Section 14 (BLM) and section 24 (BLM), but passing through the airspace above Section 23 (Plaintiff [Iron Horse]) and/or Section 13 (Plaintiff)." Id. In holding onto the steel posts and swinging around them to cross from Section 14 to Section 24, there is no evidence the Defendants caused any damage to Plaintiff's property." Id.
During other hunts in later years, the hunters wanted to avoid all this grabbing and swinging and "in an effort to not touch Plaintiff's steel posts when crossing ... they brought a steel A-frame ladder[.]" Order at 9. They propped up this and use it for crossing without touching Iron Bar's land, nor its posts.
Now that is dedication.
All this time, Iron Bar was objecting. It didn't really believe the hunters did not step on its land, became "much more aggressive about expelling the hunters" (Order at 11), confronted and surveilled them, drove vehicles nearby "in an effort to scare away the game" (id.), and "instituted an ongoing practice of having its employees confront or interact with a 'suspected trespasser' found on or near Plaintiff's property, even if the person was found on public land." Order at 8. It dropped dime to Wyoming Game & Fish, and pressed criminal charged. Finally, it sued the hunters in civil trespass actions.
With that background, the district court addressed whether the hunters violated Iron Bar's private property rights in its airspace. First question: does Iron Bar have any private rights in the airspace. Second, if so, did the hunters jumping over Iron Bar's land and physically entering -- if only momentarily -- the airspace when they jumped or used the ladders, violate any private rights?
We won't go into the great detail that the district court's Order does. We think it is well-worth your time to read yourself. Strap on your old school dirt law glasses and enjoy the ride.
Short story: the airspace is Iron Bar's private property. The Wyoming Supreme Court has held that the air above the ground is private property, "subject to the right of [aircraft] flight." Order at 14. You may not own all of the airspace, but you do own some of it. And as private property, Iron Bar has the right to exclude others. Essential stick, and all that.
But that wasn't the end of it, because the court held that there are some legal restrictions on the right. Among those restrictions is that members of the public have a right to a reasonable way of passage to access public lands. Next, the court analyzed the scope of that limitation, and held that there must be some damage from an intrusion into airspace. Order at 24.
With that, the court concluded that the hunters' corner crossings are not unlawful trespasses. No physical touching of Iron Bar's land. No damage. Only airspace, and even then only briefly. And Iron Bar didn't heed its own advice: "the locked chain that was installed between the steel posts by Plaintiff hung through airspace over the adjoining public land of Section 14 and 24. Order at 27. These metaphysical "gates" also "constituted an improper attempt to 'prevent or obstruct ... any person from peaceably entering upon'" public land. Order at 28 (quoting a Wyoming statute that makes it illegal to try and keep the public off of public land).
Summary judgment to the hunters on most of Iron Bar's claims (there was one crossing, however -- not at a corner -- at which there remains a factual dispute about whether one of the hunters actually stepped on private property). So this one is mostly over, but not quite.
The entire Order is well worth your time, Dirt Lawyers.
