DENVER—A federal appeals judge Tuesday suggested Congress clearly meant for the public to access federal property in the checkerboard pattern of land ownership in Wyoming as he queried attorneys in a highly watched corner-crossing trespass case here.
Senior Judge David Ebel asked how Congress would have answered the question of whether it intended railroad companies — who were granted every other square-mile section on the checkerboard landscape — to be able to block public access to the other squares of public land.
In his framing of the case, Ebel opened the door to an interpretation that the owner of the Elk Mountain Ranch in Carbon County could not block four Missouri hunters — or the rest of the public — from corner crossing to reach public land.
Ranch owner Fred Eshelman sued the hunters in 2022, asserting they trespassed when they corner crossed to hunt federal land enmeshed in his 22,045-acre ranch. Eshelman lost his case in federal court in Wyoming and appealed it to the 10th Circuit Court of Appeals, where Ebel and two other judges heard oral arguments.
Corner crossing is accomplished by stepping from one piece of public property to another at the common corner with two pieces of private property, all arranged in a checkerboard pattern, without setting foot on private land.
“I’ve rarely seen such a jumbled mess of language and dicta and holdings.”
Senior Judge David Ebel
Eshelman contends that passing through the airspace above his property is trespassing. If that’s so, he and other similar landowners could block public access to some 8.3 million acres of public land across the West.
Congress never intended such a situation when it gave railroads every other square-mile section in a 40-mile-wide swath across southern Wyoming, Ebel suggested.
“If you would ask Congress,” Ebel said, “Do you really intend to give [the public] an illusory right … because the railroads could block out almost all the access … I have no doubt how they would have answered that question.”
He drew agreement from the hunters’ attorney Ryan Semerad: “I think I have no doubts as well.”
Unlawful Inclosures Act
Ebel, along with Judges Timothy Tymkovich and Nancy Moritz, heard Semerad argue that the Unlawful Inclosures Act of 1885 prevents Eshelman from blocking the public from corner crossing. In a hearing that lasted almost an hour, Semerad dueled with Eshelman’s attorney, Robert Anderson, who said the public has no implied easement across checkerboard corners.
Allowing people to corner cross amounted to a taking of private property without the compensation required by the Constitution, he said. The government can buy easements to allow public access, Anderson told the court.
“They’ve got $900 million appropriated annually to do exactly that,” he said. “All of this can be fixed by the government tomorrow.”
The panel will weigh the rights of private property owners, including the right to exclude others from one’s land, against the public’s right to access public land as set down in the 1885 law. But Ebel said seemingly conflicting rulings on the issue have created a legal chronicle that was “truly a mess.”
“I’ve rarely seen such a jumbled mess of language and dicta and holdings,” Ebel said.
Judges tried to sort out the conflicting rulings between a case known as Leo Sheep, in which courts prevented the government from constructing a road across a common checkerboard corner, and other rulings that granted access to public land, first for livestock and its tenders, then for wildlife.
About 50 people packed the courtroom to standing-room-only capacity, albeit some appeared to be there for cases to be heard later.
Anderson would not comment after the hearing. Semerad said he felt good about the session, pointing to the judges asking “a lot of interesting questions.”
Implied easement
“Entering airspace immediately above the surface of the land of private property without permission or privilege is a black-letter trespass under Wyoming law,” Anderson began. “No federal law preempts state trespass law or creates the easement right to cross private property that the defendants claim here.”
He pointed to the Leo Sheep case. No easement — no road.
But other cases both before and after Leo Sheep did imply easements, including one called Bergen, Tymkovich said.
“Bergan let the antelope have implied easement and the other cases let the donkeys have an implied easement,” he said. “The sheep had an implied easement in other cases. Here, the humans are looking for an implied easement.”
Those cases relate to landowner-created nuisances, Anderson said, whereas preventing trespass is no nuisance. “No court, as far as I’m aware, has ever found that a legal cause of action constitutes a nuisance that can be abated under federal authority.”
Moritz said there was no other way for the hunters to reach the public land besides corner crossing, which they did in “the most minimally intrusive way.”
“Is there any way,” she asked, “for [the hunters] to access in a less intrusive way than helicopter?”
Anderson said no.
“Access to the public land that we are talking about is simply unavailable if they are not able to do this most minimal of crossings,” Moritz said. That creates “a necessity” that prior cases favoring access rely on, she said.
“Why doesn’t that [necessity argument] take the day here?”
Free passage and limiting principles
The panel asked hunters’ attorney Semerad why the government couldn’t buy easements as Anderson suggested. “The federal government, on your behalf, can condemn an access if it wishes,” Tymkovich said.
That’s a “very optimistic view of Congress,” Semerad said, turning to a clause in the 1885 UIA access law.
That clause says “no person shall prevent or obstruct … free passage or transit over or through the public lands,” Semerad said. “What [Eshelman and his attorneys] are saying is, ‘Well, if we don’t use a physical thing, if we don’t put a gun in your face, if we just sue you for a large amount of money,’ which I guess they dropped, ‘then is that OK?’
“Our answer is … Congress says, ‘You shall not obstruct free passage.’
“Never have we asked for an implied easement,” Semerad said. “We’re saying, ‘Tell them they can’t stop us from peaceably accessing these lands.”
Tymkovich said Semerad and the hunters seem to argue that courts could allow “a 50-foot access right through these corners.”
“The hunters could have motorized vehicles access … handicap access for disabled hunters,” he said. “What’s the limiting principle?”
That’s not at issue, Semerad said.
“The UIA restrains landowners’ use of their land,” he said. “You can’t exploit the interlocking land pattern to deny everybody else the benefits while you reap them all.”
Tymkovich challenged him: “Basically you’re using the [Unlawful Inclosures] Act to ratify a trespass.”
The Supreme Court of the United States resolved that in a case called Camfield, allowing public access, Semerad said.
“When Congress puts limits on landowners in the checkerboard and says you can’t use your land in ways that eliminates entry, access and use of the public land while you yourself enjoy a monopoly, that’s not a taking.”
“Well, it is a taking,” Tymkovich said. “You’re taking part of the landowner’s use and enjoyment of his property.”
Semerad pointed to two Wyoming cases — one involving flight and the other a power line — in which landowners were unable to prevent some use of the airspace above their land.
“You need to have some kind of surface contact for it to be [a trespass] violation,” Semerad said. “In general, it is not a trespass when … there is no harm to the underlying surface use.”
In closing, Eshelman’s attorney called it “a very large step” to say one person has rights to somebody else’s property as proposed by the hunters. Ebel immediately challenged that view, saying that if a neighbor’s property is producing toxic materials that flow to your own land, “you have rights” to stop that nuisance.
The panel is expected to issue a ruling sometime in the near future, although judges did not indicate when.
A simple solution would be to change the Wyoming hunting trespass statute by adding “It shall not be deemed unlawful to access a parcel of public land from another adjoining parcel of public land by simply stepping one to the other when the only intrusion upon any adjoining private land is the airspace above. This described situation is known as ‘corner crossing’ and considered a legal way to access public lands”. Finding legislators to introduce and enact such a change is the challenge.
This judge kind of took the “AIR” out of Eshelman!
If the court rules in favor of the landowner, airline travel in the U.S. is finished. If it is illegal to be in the airspace by one inch over the landowner’s corner of private land, by extension, it is also illegal for any person or device to cross over that space 12,000 feet up into the sky. The landowner’s argument is patently absurd, not even considering the intent of Congress to deny the Public access to thousands of square miles of PUBLIC land.
Judging from the almost absurd extremes to which Eshelman has gone in arguing ownership of airspace over this common corner, and his attorney ridiculously arguing that by passing through this phantom airspace “private property” is somehow being taken, should he lose this case, I can envision Eshelman constructing a 10-15 foot high fence at this precise common corner just out of spite to prevent a future similar “incursion” unto public land but OVER “HIS”
airspace!
Eshelman’s attorney’s are just wrong on the point they are trying to make and that is that Eshelman owns the air above his property. He doesn’t even own 1″ of the air.
The landowners want the full benefits of owners of public land whist only paying for grazing rights which amount to roughly $20/section/month. That’s $240 per year for 640 acres to act like you own it when you don’t.
It’s absolutely ridiculous that they essentially are saying the quiet part out loud and that is that these properties are already priced/valued as if they own the public land locked up within their boundaries.
Basically, if the landowner prevails, he will gain the equivalent of fee land at the substantially reduced rate of Federal leasing, which I believe is around $3 per Aum, which is 1 cow and calf, 5 sheep, etc.. I have recently seen for sale prairie land similar to that area for sale for 800+ an acre. So lets say a section 640 acres is rated at 40 acres per AUM. 640/40=16 head so that section BLM lease would be 16*3 or 48*12 months= $576 annual lease. I do not believe the lease holder pays property taxs as they do on fee and state land, which is another benefit. That same 640 acres at 800 and acre is $512,000
Exactly, they could lease it for 1000 years and still come out ahead, all the while they get to act like they own it.
Aaah! The same decision of what “We the people” declared at the “Jury” trial from the beginning.
My question is will this individual be able to take all the money spent on legal fees to lose this case now “write it off” in TAXES while “We the people” get to further PAY TAXES for proving what JUSTICE is from the very beginning at the Jury Trial? Semper Fi!
I agree that corner crossing should be legal to access public land that are designated for public use and should not be infringed, too many large ranches and big money is buying up properties to prevent public land access for thier own gain when pay our taxes to do so in accessibility to our public lands.
Would it be ok fr people on their way to the post office, store etc to make a short cut thru your yar ……any of you?
You’re being obtuse. That’s not even the argument. The argument is: is putting a body part OVER somebody’s property WITHOUT touching it legal?
This case is not about an ask to shortcut through anyone’s yard.
That is not a fair analogy. Yes it would be okay for someone, on the way to the post office, to step over a corner of my property without stepping on my property.
Marion. That would be much different argument then this is. This is simply stepping over an abutting corner of land to access public land. Land you own part of as citizen of USA. Stay with the points of argument.
If someone’s hand or shoulder was momentarily in the “airspace” above my yard then yes, I would be fine with that. It’s not the same as walking through the yard.
No, although that really wouldn’t be that big of a deal, one person cuts through your yard, however that’s not what this is about. This is about a landowner purposely trying to deny access to public land that he felt he had “landlocked” so that they could use it as if they owned it when in fact they don’t.
“would if be ok for people on their way to the post office, store, etc., to hold their arm over your yard while they walked down the sidewalk?” Logic and grammar fixed for you, free of charge.
Stretching the it’s my air space argument waaaaaaay to far this billionaire guy, how many times do cellular signals pass over property not owed by the caller ?
It seems that Eshelman, through his attorney, hinges his argument upon ownership of airspace over a common corner the violation of which he considers trespass. It would seem (from his attorney’s suggestion) that unless a government entity PAYS him (presumably a King’s ransom) for access through his “owned” airspace and over a small patch of underlying ground for access from one public parcel to another, he, alone, will reap all the benefits of the public land which the taxpayers of this state and this country maintain. Is that the pinnacle of covetousness, of greed? And does he give a rip? Common sense, though uncommon, must prevail here.
This case may fix the checkerboard land issue. However, it does nothing for the other land locked public lands. Many of these lands had past federal US Forest Service and Bureau of Land Management easements used for land management purposes (wildlife management, logging, mining, etc.) that were supposedly abandon over the last 50 years. I am not really sure how that all works? I have been told in the past the US government had rules in place to never abandon land management easements across private lands as they never know when they may need to use the easement again.
The arguments do not seem to consider that the landowner still maintains control of his property. Corner crossing only allows an individual to access the public land that he or she is entitled to use. The individual cannot hunt, fish or travel across the rest of the private property.
Correct. Private property is already protected. If these gentlemen would have stepped on Fred’s land they would have been found guilty. This case is not about wanting to access private property.
State could have settled this question eons ago. But they protected the cattle barons.
Thank you for being our ears in the court. It’s so valuable to hear the arguments. I’m also grateful for the sacrifice that the 4 hunters have made and for Ryan Semerad taking up this argument for all of us. I’m grateful this issue is getting resolved. The seesaw back and forth over the last 30 years has been a black cloud.
I find it interesting that it was non-residents that initiated this action, and not any locals.
Locals would get too much blowback, it’s better this way. He can just hate the strangers for this instead.
Another excellent article on this important issue. Thank you!
Steve Duerr
Long over due arguments. If you’re a landowner in this case, you want to keep all land public and private to yourself. Not what the checkerboard land was meant to be. If your the public you want acces to YOUR land! It’s time the courts don’t back down from this ugly mess and fix it.