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  1. #1
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    Aug 2013
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    Bates, Oregon
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    Default Use of Prescriptive Easements on Public Lands

    My question involves an easement in the state of: Oregon

    Currently the US Forest Service is attempting to close thousands of miles of roads throughout the Northwest through a "travel management" process as well as implement a "closed forest system" to any off road travel.

    I would like to know if a member of the public can make a claim of a Prescriptive Easement based around their historic use of the roads and needed motorized access to gather firewood and food sources from public lands?

    My family has lived in the mountains of Northeastern Oregon for the last 94 years and subsisted off these lands. We are now being told that we can not travel down roads that we have historically traveled which directly negates our ability to access public lands.

    Does it seem like to far of a stretch to make a Prescriptive Easement claim?

    Just curious.

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
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    Default Re: Use of Prescriptive Easements on Public Lands

    Prescription and adverse possession generally do not run against a government entity.

  3. #3
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    Default Re: Use of Prescriptive Easements on Public Lands

    Your state has a doctrine of implied dedication, whereby if you prove that the state intended to dedicate the roads or paths to public use you may be able to litigate to enforce an easement for the benefit of the public consistent with the implied dedication - however, you must prove not just that roads or trails were open to the public, but that there was intent to dedicate.
    Quote Quoting RealVest Corp. v. Lane County, 196 Or.App. 109, 112, 100 P.3d 1109 (2004)
    For an implied dedication of land to the public to occur, there must be a clear and unequivocal manifestation by the owner of the property of an intent to devote it to public use. Muzzy v. Wilson, 259 Or. 512, 518, 487 P.2d 875 (1971). Under ORS 275.027, "[t]he rights of any county to public lands are not extinguished by adverse possession." Also, as the county correctly argues, the fact that the apartment occupants and their invitees have used the driveway for many years is as consistent with the county's acquiescence in that use as it is with an implied intent to dedicate the land to public use.

  4. #4
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    Bates, Oregon
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    Default Re: Use of Prescriptive Easements on Public Lands

    If the counties have management plans in place, and those plans reference national forest as an economic asset to the county would the be sufficient proof?

  5. #5
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    Ohio
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    Default Re: Use of Prescriptive Easements on Public Lands

    These forest service roads are not county or state roads unless specifically granted by permit from the USFS. On original unpatented federal land, the USFS, through the Department of Agriculture based on the Organic Act of 1897, has nearly unlimited powers; certainly not limited by state or county governments and not subject to their laws or regulations.

    On paper, the USFS claims to "make nice" with local governments but all decisions are solely up to them. Your mileage may vary regarding having them pay any attention to you.

    The State of Wyoming objected in court about the USFS road regulating powers in State of Wyoming v. US Forest Service in 2011.

    http://www.ca10.uscourts.gov/opinions/09/09-8075.pdf

    It's a long read covering a long history of cases but they were rebuffed on every theory by the court.

  6. #6
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    Default Re: Use of Prescriptive Easements on Public Lands

    Egad... federal land. State law would not apply to federal land. (If it were state land, the answer to the question above would be "no", not on that alone.)

  7. #7
    Join Date
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    Bates, Oregon
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    Default Re: Use of Prescriptive Easements on Public Lands

    But yet the USFS can claim a prescriptive easement on private land?

  8. #8
    Join Date
    Oct 2007
    Location
    Ohio
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    Default Re: Use of Prescriptive Easements on Public Lands

    But yet the USFS can claim a prescriptive easement on private land?
    Yes.

    But they have to come before a county court just like anyone else and follow state laws on land which was previously patented out of their ownership.

    "There is no principle better established, and more uniformly adhered to in this court, than that the circuit courts, in deciding on titles to real property in the different states, are bound to decide precisely as the state courts ought to do."

    U.S. Supreme Court

    Hinde et al v. lessee of Vattier 30 U.S. 398 (1831)

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