While I understand the beneficent intent behind this bill, I don't think the bill would actually accomplish its goal, and would instead result in unnecessary confusion and litigation.
This law would not actually add anything substantive to road laws of this state. The main point of the bill is that no person may install a barrier across a public prescriptive right-of-way. However, this is already the law. See MCA 7-14-2133 through 7-14-2138, as well as public nuisance laws. The bill does nothing to impose additional criminal sanctions or anything else, so does not actually add any additional counter-incentive for someone to not obstruct a prescriptive right-of-way.
Nor is making this type of obstruction a criminal offense really feasible. The ultimate problem with prescriptive easements is that nobody really knows their exact legal status unless/until there is a court order clarifying it. How could a criminal burden of proof be met for blocking such a road?
Even if the law were to be given some effect by adding penalties, numerous other issues in its language would lead to litigation and confusion, including: In whose opinion would the road need to "appear to meet the conditions" as a prescriptive easement? If the subject person is of the opinion that the road is not a prescriptive public road (which will almost always be the case), does the law even apply?
How does the public hearing requirement work? The subject person has no power to force the county commissioners to hold a hearing, and this law would not actually require them to hold one. With no deadline, could the county commissioners deny the request simply by failing to hold a hearing?
If the county commissioners "concur that the road of right-of-way is private" does that bind anyone else? Current road law is clear that a prescriptive road cannot be abandoned other than by petition/viewing/hearing. So a member of the public who disagrees with the commissioners could still assert that the road is a public prescriptive road, and maybe even sue the county for damages for interfering with their right to travel the road.
If this were to pass, I think we'd need to seriously consider filing a declaratory action whenever (or if ever) anyone asked the county to make a determination of a road's status under this law. That being the case, the way I can see this law playing out is as a tool for any private person to effectively force the county to determine the legal status of roads that the county really doesn't have an active interest in, such as where neighbors disagree over the status of access roads.
I looked over James comments on the blog and don't believe it has any impact on my departments work activities. I agree that it doesn't add substantively to current road law nor does it really clarify any perceived flaws.
While I understand the beneficent intent behind this bill, I don't think the bill would actually accomplish its goal, and would instead result in unnecessary confusion and litigation.
ReplyDeleteThis law would not actually add anything substantive to road laws of this state. The main point of the bill is that no person may install a barrier across a public prescriptive right-of-way. However, this is already the law. See MCA 7-14-2133 through 7-14-2138, as well as public nuisance laws. The bill does nothing to impose additional criminal sanctions or anything else, so does not actually add any additional counter-incentive for someone to not obstruct a prescriptive right-of-way.
Nor is making this type of obstruction a criminal offense really feasible. The ultimate problem with prescriptive easements is that nobody really knows their exact legal status unless/until there is a court order clarifying it. How could a criminal burden of proof be met for blocking such a road?
Even if the law were to be given some effect by adding penalties, numerous other issues in its language would lead to litigation and confusion, including:
In whose opinion would the road need to "appear to meet the conditions" as a prescriptive easement? If the subject person is of the opinion that the road is not a prescriptive public road (which will almost always be the case), does the law even apply?
How does the public hearing requirement work? The subject person has no power to force the county commissioners to hold a hearing, and this law would not actually require them to hold one. With no deadline, could the county commissioners deny the request simply by failing to hold a hearing?
If the county commissioners "concur that the road of right-of-way is private" does that bind anyone else? Current road law is clear that a prescriptive road cannot be abandoned other than by petition/viewing/hearing. So a member of the public who disagrees with the commissioners could still assert that the road is a public prescriptive road, and maybe even sue the county for damages for interfering with their right to travel the road.
If this were to pass, I think we'd need to seriously consider filing a declaratory action whenever (or if ever) anyone asked the county to make a determination of a road's status under this law. That being the case, the way I can see this law playing out is as a tool for any private person to effectively force the county to determine the legal status of roads that the county really doesn't have an active interest in, such as where neighbors disagree over the status of access roads.
Greg Robertson writes:
ReplyDeleteI looked over James comments on the blog and don't believe it has any impact on my departments work activities. I agree that it doesn't add
substantively to current road law nor does it really clarify any perceived flaws.
So I have no real comments or concerns.