The judicial panel poised to hear the appeal of a corner-crossing trespass lawsuit comprises three judges appointed separately by presidents Ronald Reagan, George W. Bush and Barack Obama.
The panel for the 10th Circuit Court of Appeals will hear arguments Tuesday in Denver when ranch owner Fred Eshelman will argue the three should overrule Wyoming’s Chief U.S. District Judge Scott Skavdahl, who decided that four Missouri hunters did not trespass when they corner-crossed at his property in 2020 and 2021.
Corner crossing is the act of stepping from one piece of public property to another at the common corner with two pieces of private land, all arranged in a checkerboard pattern. The Missouri hunters did not set foot on Eshelman’s land or damage his property.
Eshelman argues that Skavdahl’s decision violates a fundamental right to exclude others from one’s property and the airspace above it. By doing so, hunters argue, the North Carolina pharmaceutical magnate unjustly claims exclusive use of thousands of acres of public land enmeshed in his Elk Mountain Ranch.
Skavdahl’s ruling and the 10th Circuit’s pending decision could set a precedent for public access to 8.3 million acres of public land in the West. That public property is considered “corner locked” under any convention that treats corner crossing as trespass.
The judicial panel that will hear the case is a diverse collection appointed by three different presidents in three different decades. Two men and a woman make up the group.
President Ronald Reagan appointed Senior Judge David M. Ebel, a Kansas native, to the court in 1987. The Senate approved the appointment unanimously.
His colleague, Judge Timothy M. Tymkovich, began serving in 2003 after an appointment by President George W. Bush. The Senate approved the appointment of the Denver native 58-41.
President Barack Obama appointed Judge Nancy Louise Moritz to her post in 2014, and the Senate approved her nomination 90-3. She is a native of Beloit, Kansas.
David Ebel
In 2013, Ebel and another 10th Circuit judge allowed horse slaughterhouses to operate in New Mexico, Missouri and Iowa, rejecting an emergency motion for an injunction, according to a summary by Ballotpedia. A lower court had decided the operations could resume, rejecting the claims by Front Range Equine Rescue that the U.S. Department of Agriculture didn’t follow the National Environmental Policy Act.
He also weighed in on a case in which a trial court found that Abercrombie & Fitch Stores discriminated against a Muslim applicant who wore a headscarf to an interview. Such attire would violate the company’s dress code, and the woman was not hired.
A trial court made a summary judgment in favor of the Equal Employment Opportunity Commission and against Abercrombie. But the 10th Circuit overturned that, saying Abercrombie wasn’t told that the headscarf was worn for religious reasons — which would have opened the door for a dress code exemption. Ebel agreed that the trial court was wrong in siding summarily with the EEOC, but said that the discrimination question should have been sent to a jury, according to Ballotpedia.
Ebel attended Northwestern University and received a bachelor’s degree. in 1962. He attended the University of Michigan Law School and got his degree there in 1965.
Ebel clerked for U.S. Supreme Court Justice Byron White, was an adjunct professor of law at University of Denver Law School and a lecturing fellow at Duke University Law School.
Timothy Tymkovich
In 2014, the U.S. Supreme Court upheld a 10th Circuit opinion penned by Judge Tymkovich in the Hobby Lobby case that ultimately absolved the company from providing contraceptive coverage for employees under the Affordable Care Act, aka Obamacare. The full 10th Circuit reversed a decision by a smaller 10th Circuit panel and held that Hobby Lobby held protected rights — just like a person — of religious exercise.
The Supreme Court upheld Tymkovich’s ruling 5-4. Then-President Donald Trump put Tymkovich on a list of possible replacements for Supreme Court Associate Justice Anthony Kennedy in 2018, a position that went to Brett Kavanaugh, Ballotpedia states.
Tymkovich graduated from Colorado College in 1979 and the University of Colorado Law School in 1982.
He clerked for Hon. William H. Erickson in the Colorado Supreme Court and was Colorado’s solicitor general from 1991-1996.
Nancy Moritz
The U.S. Supreme Court in 2017 vacated a judgment penned by Judge Moritz for a 10th Circuit panel denying an immunity claim by a police officer. The officer arrived at a house where a police action was ongoing, witnessed shots fired by a person in the house, and shot and killed the person without first giving a warning.
The Supreme Court decision essentially says a reasonable law enforcement officer who arrives late on a scene of an ongoing action like the one in question can assume that proper identification by police has been made.
Moritz graduated from Washburn University in 1982 and Washburn University School of Law in 1985. She was a research attorney for Harold S. Herd of the Kansas Supreme Court and clerk for Patrick F. Kelly of the U.S. District Court for Kansas.
She was an assistant U.S. attorney for Kansas, was a judge on the Kansas Court of Appeals and a justice on the Kansas Supreme Court from 2011-2014.
Not guilty
In 2022, a jury in Carbon County, home to Elk Mountain, found the hunters — Bradly Cape, Phillip Yeomans, Zachary Smith and John Slowensky — not guilty of criminal trespass. Eshelman sued the men in civil court seeking to forever ban them and others from corner crossing.
Because custom, convention and some law officers have regarded corner crossing as trespassing, the public is effectively blocked from accessing millions of acres of public land in the West. No laws address the practice directly; the hunters say the 1885 Unlawful Enclosures Act prevents landowners from blocking the public from public land.Public land advocates generally hail Skavdahl’s ruling. Eshelman and some western landowners say the decision violates the right to exclude others from one’s property — and the airspace above it.
Hmm not sure recounting previous decisions of the panel warrants a full story. Perhaps instead of providing a cup of tea leaves, WyoFile could be more helpful by giving the link to the 10th Circuit livestream info: https://www.ca10.uscourts.gov/oral-argument-live-streaming (or direct link for Courtroom 4: https://www.youtube.com/watch?v=1lDO7gPS9Tw&ab_channel=TheU.S.CourtofAppealsfortheTenthCircuit ) and/or let folks know you can listen to arguments afterward via the audio archive.
Pacific Railroad Act (1862)
Section 3:
That there is granted to said company, for the purpose of aiding in the construction, every alternate section of public land, by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits often miles on each side of said railroad, not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time of the said railroad is definitely fixed.
And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years of the entire railroad completed, shall be subject to settlement a d preemption like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.
The land was all public land, when the railroad was being constructed. How would the two companies, the Central Pacific and Union Pacific, contracted to construct the railroad, sell these parcels of land granted to them by the U.S. Congress to recoup there expenditures if there were not assumed ingress/egress easements attached to each parcel. The vast majority of these lands would be worthless. Wyoming became a state on July 10, 1890. The railroad tracks were completed on March 8, 1869, in Ogden Utah. Construction started in 1863. Additional work was still conducted for another year to be considered completed.
This will go all way to Supreme Court. Mr. Brown. Question for you. If one stands at your property line. Waves one’s arm/hand over property line on to your property. Do you consider that trespassing as well?
What if a branch of a tree in my yard is growing over the property line into your yard?
Do you think you would have the right to cut that branch off?
Yes, you would because you own the airspace over your property.
Likewise, a property own would, technically, have the right to sue someone for trespass for waving their arm over the owner’s property line.
That’s a silly situation, and I’d hope no one would ever try to do this, but the law would likely allow for such a suit.
If you’ve ever stood at one of these corners, you know that it is absolutely not trespassing. Why would one or even two opposite corners have more weight than the other two that are public? Also, the one paying damages should be Eshelman. He has bulldozed State section 4 on the east face of Elk Mtn 3 different times. Look at google maps and you’ll see the scar along his lay down fence. Who uses a bulldozer to build fence? Someone who wants a road and has been told no by the state.
Excellent research ! Thank you!
This case is a big deal.
Steve Duerr
Corner crossing is definitely trespassing.
However, any “damages” suffered are clearly de minimis (minimal).
Therefore, in order to preserve property rights in this case, I would have declared a trespass had occurred. Also, to ensure justice was served, I would have awarded $1 in damages. Yes, one single dollar.
So the land owner owns the air? Reminds me of the cartoon “The Lorax”. Nobody owns the air we breath or take up!
Nobody ever said anyone owns the air. They do own the space over their land, though.
How far up would the airspace extend? How about airplanes and satellites?
That’s a good question. It depends.
It can’t go as high as FAA controlled airspace, right? Otherwise we’d have people trying to charge anyone who flies over their property a “trespass” fee. That isn’t going to happen.
But, surely, 100, 200, or even 300 feet above is reasonable to want to keep people from invading your privacy with a drone.
I think, in many cases, you’d have to look at case law, statutes, etc. to get an idea of where a landowner’s airspace ends and the public’s right to fly over your property begins.