PROPERTY IS PROPERTY AND RIGHTS ARE RIGHTS

By Ron Moody

Along with several hundred other Montanans I spent the morning of Monday, April 29 listening to arguments before the State Supreme Court in PLWA v Madison County & Kennedy.

Several newspapers covered the hearing but I am moved to write this column, not by the actual reporting, but by one repeated assertion in reader comments to those news stories.  A number of readers are supportive of Kennedy’s argument that his private property rights are violated by the Montana Stream Access law and by Section 4 of the Montana Constitution which mandates: “the Legislature shall provide for . . . cultural and recreational areas . . . and for their use and enjoyment by the People.” 

That perspective is fair enough; what dismays is the implicit view that the only property rights at risk in this case are those of the private property owner. Apparently, these folks only recognize the existence of property rights when property has a private owner.

To the contrary, this case is a dispute between two overlapping, and equally valid, property rights – public versus private.  Property owned by the public carries the same bundle of rights in law as property owned privately.

PLWA v Madison County thus contests the interests of two equally legitimate property owners when the two separately owned properties are merged together in one physical setting – in this case public water flowing over private land. Access to property is an established element of ownership; PLWA is in court defending the public’s right to access its legally owned property, water and wildlife, against Kennedy’s effort to deny that access.

James Kennedy clearly owns the land bounding the Ruby River.  The aggrieved owner(s) are the people of Montana through their trustees, the State Government and Madison County. The people clearly own the water and wildlife in the Ruby River and they own the prescriptive easement across Kennedy’s land and the river.

PLWA claims the public road prescriptive easement of Seyler Lane is wide enough to allow legal public access to the public waters of the Ruby River without creating a trespass on Kennedy. PLWA is appealing a lower court ruling that the easement narrowed at the bridge and thus precludes actual access to the water by public users.  Kennedy argues that simply floating over his private stream bed is trespass (not to mention touching foot to the stream bed while wading), and thus the Stream Access Law is an unconstitutional taking of his property.

The foundation of Kennedy’s argument is the Fifth Amendment of the U.S. Constitution that bars taking of private property without just compensation – thus, in the absence of ‘just compensation,’ no legal taking of private property can occur and passage of time does not mend the loss.

However, reading the Fifth Amendment in isolation of legal history requires us to recognize a much greater and more violent taking of private property occurring on this bridge crossing site in Madison County. That ‘taking’ is the creation of the Seyler Lane prescriptive road easement itself.  Employing the logic of Kennedy’s argument, the Fifth Amendment means that Seyler Lane and all the tens of thousands of other public roads established by prescription are illegal takings and should not be there.

The state stream access law is peanuts next to this historic and pervasive taking of private property for public use.  Remember that a prescriptive easement is nothing more than the creation of a public property right across private property by way of unchallenged lengthy and continuous public use of the right-of-way. No ‘just compensation’ takes place; a court simply rules that public use meets the standards of easement law and the public gets to use the private property in perpetuity.

Why was this taking not challenged by Kennedy?  Perhaps because prescriptive easements fall into a category of exceptions to the strict mandate of the Fifth Amendment that have become well and strongly established in U.S. law and broad local custom.  Other such ‘takings’ include zoning ordinances, police powers and public nuisance and public health and safety laws. (although zoning laws sometimes do get push back on takings grounds.)

The public taking of a prescriptive easement from a private property owner is a ‘taking’ on its face – but this taking, apparently, is simply “too big to fight” – reminiscent of banks too big to fail.

Rather than framing the dispute at the Seyler Lane Bridge crossing of the Ruby River as a violation of one property owner’s rights, I argue the conflict is that of two owners striving to resolve mutual, equitable use of property by both owners whose property occupies the same space.  Kennedy deserves full use of his land while the people of Montana deserve at least a limited ability to use their property – the river and the publicly owned fish that live in the river. 

Making rules to equitably govern this sharing of space was the purpose of the Montana Stream Access Law. As such, the Stream Access Law is no more of an abridgement of constitutional right than are laws against slander, or shouting fire in a crowded theater, abridgements of freedom of speech guaranteed by the U.S. First Amendment.

Of course, this logic becomes irrelevant if Kennedy’s real purpose is to seize control over the public property that flows across his land – but that’s a taking of a different color, isn’t it.