CASPER—A judge Wednesday said he “has plenty of things to chew on” as he mulls a corner-crossing suit that alleges four hunters trespassed by passing through the air above a private ranch.
In response to an hour and 20 minutes of arguments at a motions hearing, Chief U.S. District Judge Scott Skavdahl said he must decide what rights belong to a landowner as he himself attempts to settle the legal claims.
The hearing marked the first instance conflicting arguments in the civil corner crossing case have been put under rigorous, public and legal scrutiny. Skavdahl questioned whether there is a “genuine issue of material fact” that should be settled by a trial. Attorneys for Elk Mountain Ranch owner Fred Eshelman and the Missouri hunters have each requested that he instead make a summary judgment in their favor.
Rather than immediately rule, he promised a decision on the summary-judgment requests soon in the case that otherwise is scheduled to go to trial in June.
The civil case could establish whether corner crossing — stepping from one piece of public land to another at the four-corner intersection with two pieces of private property, all without setting foot on private land, is permissible. The case has implications for 8.3 million “corner-locked” acres in the West where federal railroad land grants in the 1800s left a checkerboard pattern of land ownership.
Eshelman believes “we should have control over who crosses the private land,” including the air above, he has said in a deposition. The hunters believe passing through the airspace is not trespassing and that a federal law prevents Eshelman from blocking them from public property.
Skavdahl probed the conflicting reasoning behind claims made over the last year by the two sides.
“Is the public land … no longer public? Can the public access the public land?”
Judge Scott Skavdahl
If corner crossing is illegal, he asked, does that mean the public can’t access public land blocked by the ranch? Does Eshelman believe the right to exclude others from some 6,000 acres of public land “corner-locked” by his 22,045-acre Elk Mountain Ranch is worth $7.5 million?
Did two fence posts on Eshelman property — chained together across a common corner with public land — constitute an obstruction prohibited by federal law, the judge wondered. If corner-crossing is allowed, does that damage a property owner by diminishing the value of his or her land?
“I believe the judge asked both parties some hard questions,” Eshelman’s attorney Greg Weisz said after the hearing.
Airspace
The Carbon County prosecutor charged the hunters with criminal trespass in 2021 but a jury found them not guilty last year. In an ongoing civil suit filed in 2022, Eshelman alleges three of the hunters trespassed through his airspace in 2020 and all four in 2021.
Eshelman doesn’t just own the ground, ranch attorney Weisz told the judge, citing a common-law doctrine known as ad coelum. “You own to the heavens,” Weisz said.
Because the checkerboard corners come together in an infinitesimally small point, “it is physically impossible [to corner cross] without physically invading the airspace,” he said.
Skavdahl asked, “Is the public land … no longer public? Can the public access the public land?”
Weisz said the public can: by helicopter or plane.
The hunters’ attorneys Ryan Semerad and Lee Mickus maintain that the airspace above the common corners is, according to Wyoming law, “vested in the several owners of the surface beneath.” Passing through it is not trespassing, they say.
“I don’t think that’s an artificial reading,” Semerad said. If one views the law otherwise, “then that statute doesn’t mean what it says.”
Skavdahl asked whether a landowner has a right to exclude others from his or her property, likening ownership to a bunch of sticks, each conveying a different right.
Exclusion, “is that not part of the ‘bundle of sticks?’” the judge asked. Are the hunters trying to “take a stick?”
The hunters are not using the law to make a claim or take anything from Eshelman.
Eshelman has no right to exclude others from public land, he said. “It’s never been part of their bundle of sticks.”
Semerad referenced the federal Unlawful Inclosures Act of 1885 that hunters say bars Eshelman from blocking them from the public land at Elk Mountain Ranch. Without public access, Eshelman enjoys the “benefit of the whole” landscape — including public property — even though he only owns part of it, Semerad said.
At Elk Mountain Ranch, that amounts to a minimum of 6,000 acres, Semerad estimated. “They do not want to allow access because they want to preserve a perceived monopoly of that public land,” he said.
The Wyoming Constitution says no one shall have right and title to unappropriated lands, Semerad said. Wyoming law also says low-level flight is not a trespass unless it causes some kind of damage, he said.
Stepping across a corner “can’t be so far different” from such low-level flight, Semerad said.
Unlawful Inclosures Act
The hunters say the UIA prohibits erecting physical barriers and using threats and intimidation to keep the public from accessing public land.
Two ranch fence posts chained together across one common corner, plus harassment by ranch manager Steve Grende, constitute obstructions, the hunters contend. Eshelman’s lawsuit itself is “a $7.5 million monumental obstruction,” Semerad said.
“This is not a case about the right to corner cross,” he said. Instead it’s about “freedom from unlawful interference” with public access to public land.
Weisz said the hunters are “attempting to use the UIA to create access.” The federal law is instead intended to preserve access and is a tool for the U.S. attorney, not an instrument in civil litigation.
The fence posts, each of which held a no-trespassing sign, were erected “to say to people ‘stay off [Elk Mountain Ranch] property,’” Weisz said. That’s “dramatically different” from erecting an obstructing fence, Weisz said. “They’re not even close.
“Those did not obstruct the defendants,” Weisz said. The hunters swung themselves around the posts in 2020 and climbed over them using a homemade ladder in 2021.
Furthermore, ranch property manager Grende was able to pass between the posts, Weisz said, but a person with a pack full of gear could not.
Elk Mountain Ranch removed the chain, Skavdahl observed, “about a week before the filing of this lawsuit.”
Skavdahl quizzed Weisz about how Grende accosted the hunters on public land.
“The reality is, if they are on public land [corner-locked by ranch property] my client has the right to assume they crossed private land,” Weisz said.
Of the eight corners the hunters crossed, only the first one was flanked by posts and no trespassing signs. The hunters used the onX digital mapping program to find survey monuments marking the corners, then stepped across those monuments.
At one corner at least, the hunters went from federal to state or municipal property, Weisz said, places where the UIA does not apply.
$7.75 million
Eshelman’s civil suit originally contended that the Missourians — Zach Smith, Bradly Cape, Phillip Yeomans and John Slowensky — devalued his property by $7.75 million or more by corner crossing.
“That’s assuming every single corner is taken by the government,” Weisz said.
Prohibiting corner crossing creates a premium value for the landowner, Semerad agreed. But he questioned “whether that’s justified or legal.”
“They want something they thought they had,” he said. “They’re losing a premium that never should have been there.”
The obstruction at common corners by whatever means, “that whole scheme is a violation” of the UIA, Semerad said. “You cannot recover [damages] from your own violation.”
Since he filed the suit, Eshelman, a North Carolina pharmaceutical millionaire, has said he would withdraw his damage claim if the judge finds the men trespassed and prohibits corner crossing at Elk Mountain.
Until recently the opposing sides agreed on the facts, meaning Skavdahl could make a summary judgment whether passing through airspace constituted trespass. But Eshelman last month alleged he had proof at least one hunter actually stepped on his property and identified that spot with a digital marker now labeled Waypoint 6.
Resolving that factual dispute could require a trial and a jury’s verdict. The Waypoint 6 allegation arises from data attributed to hunter Smith’s cell phone.
The hunters dispute that Waypoint 6 proves anything, saying it could have been set remotely, unlike other waypoints on public land they marked during their hunts. The Wyoming chapter of Backcountry Hunters and Anglers raised funds to ensure the hunters could have their day in court.
Dustin Bleizeffer contributed to this report.
Scott Skavdahl does indeed have a lot to chew on and whatever his ruling this is destined for appeal. This is a case of exceptional public importance and as such a case could be made for a
rare en banc hearing of the 10th circuit. As the judge questioned, does the public have access to the public land ? Is it still public land ? When this ruling is inevitably appealed all that can should donate to the cause. Self fashioned land lords of the prairie have a lot to lose and this needs to be settled once and for all.
Federal Unlawful Inclosures Act 1885. Wyoming constitution and statehood 1890- The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof… and the same shall be and remain subject to the disposition of the United States.
If landowner owns airspace to infinity above his property, therefore any helicopter, airplane, or other airborne mode of transportation would also be guilty of trespass. I would suggest the landowner purchase the public lands for $7,759,000.00.
You talk about having your cake and eating it too. All the 1000s of acres of public land is locked up if Eshelman, an absentee landlord, gets his way of thinking. He gains exclusive use without paying ownership taxes and the least cost grazing rights other ranchers would die for. What is really ludicrous is the suite is basing the loss on land he doesn’t own.
MMMM…now if we just buy all the land around Yellowstone Park?
For any who are concerned about Judge Skavdahl, I have known him for many years and he has always taken a thoughtful, practical approach in his decision making while following the law. The issues presented in this case affect far more than just a rich out of state landowner. His decision will affect all Wyoming landowners similarly situated, regardless of how long they have owned the land here. This case is not about establishing an easement for access. It is about what federal statutory right any member of the public has to corner cross without interference by an adjacent landowner. For my two cents, I think the judge will rule that Eshelman has no right to claim a trespass and any consequent damages since the statute prevents him and any other similarly situated land owner from interfering with someone stepping over a corner to get from one parcel of public land to another. Regardless of what he decides, the case will very likely be appealed to the 10th Circuit and may end up before the Supreme Court.
Already adjudicated in US Supreme Court- maybe one of the reasons the judge questions why there is even a lawsuit at all. Camfield v. United States, 167 U.S. 518 https://supreme.justia.com/cases/federal/us/167/518/
At one point the land owners lawyer said he owns to the heavens, then a while later when he said they were not denying access, because someone could fly in by plane or chopper. Which is it?
An easement by necessity is an “easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road” (Black’s Law Dictionary).
Agreed. If the federal public land were private, then the person who owned it would have an implied easement giving him the right to cross another person’s property to get to his. I don’t know why that shouldn’t apply to public land.
Hunters should have the ability to access the public land legally, so there should be a public easement on the private property to do so period. This super rich, ignorant land owner should be put in his place.
Almost all of these comments are absolutely correct. This is what happens when the ultra rich elitists make a decision to own everything they can at the expense of everyone else. Look at Jackson. Look at Pinedale. Look at Cody. The original ranches don’t produce or contribute to our economy any longer. They are for show and like trump to put forth an aurora of I am better than you and I will do as I please. Our state is overrun with them. Without our public lands we have nothing. This is a control issue by the rich and it should be stopped dead in it’s tracks right now. I would hope that as we move forward that ranchers selling their ranches in Wyoming consider what they are doing and the long term effects for generations to come. I wouldn’t sell my ranch if I had one to any mega rich person or corporation or foreigner. I would rather split it for those that recognize what the land represents and what it’s ongoing use should be. This shows exactly what greed is and how harmful it is.
Pretty sure when the UIA was drawn up in 1885 there was no planes or helicopters so to say that the common people can access their land by these means is stretching it.
Title 10 in the Statutes of Wyoming law states low level flight over private land is allowable as long as it doesn’t “… interfere with the
existing use to which the land or water, or the space over the
land or water, is put by the owner;”. In no way did passing through the air space over the corner interfere with the plaintiffs use of his land, anymore than the helicopter or airplane his lawyer said could be used to access the public ground. In fact, corner crossing would obviously would be far less noticeable than a flying aircraft.
Excellent points.
If the land owner owns the airspace above the property. “Clear to the heavens” then commercial airlines are trespassing.
Methinks the attorney probably regrets saying that……
Hmmm… was the corner in question verified by a licensed surveyor? GPS coordinates are approximations.
Using contemporary professional-grade equipment, GPS geodetic positions are accurate within several millimeters and use the center of the earth’s mass as the datum. However, a horizontal station marker put in place by a state or federal cadastral surveyor holds precedence over a “legal land description.” One famous “miss-mark” would be “The Four Corners” where the recognized point defining four state’s corners is about a third of a mile off the legal land description! Another example would be Colorado’s western boundary; the 1854 survey built a monument along the 40th parallel about 1,800 yards short of the legal land description; the “short” western extent of Colorado (former Territory of Kansas) holds precedence.
Right on the accuracy. The Colorado-Kansas case is totally irrelevant in “corner-crossing.” If a marker is there, that is the valid marker until someone asks for a resurvey. If the landowner benefited due to that move of that marker, he should be arrested for encroaching on Federal land.That means he has no case at all.
There was a corner marker There. The official corner marker may be placed incorrectly since surveying over a hundred years ago wasn’t as exact as it is today. Nevertheless they are what currently marks much of the land in the West today.
Ray- the practice of establishing land corners and boundaries ( and derivatives like roads and fencelines) by certified licensed surveyors is fraught with irregularities. There is a constant battle between where a land survey says something should be , by the numbers, and where it actually exists on the land. There are always discrepancies tor eckon with . Some can be gigantic.
The West was originally surveyed by personnel from the Government Land Office ( GLO ) in the 19th century. The quality of their work varied from precise to fraudulent. The instruments were crude… optical transits of dubious quality and distances reckoned using a folding metal chain , 100 links measuring 66 feet total length, and a guy holding a 10 foot wooden rod. While the trigonometry applied was tight, the physical measuring was fraught , on its best days in the 19thc entury . Along came better optical instruments ( theodolites replacing transits) and 100 foot steel reel chains in the 20th century , but ultra precise laser ranging and alignment and handheld digital calculation and didn’t happen till the 1970’s. Truly accurate GPS wasn’t available till this century .
The current state of calibration in land surveying is the realizationj that most of the surveys that demarcated the American West and estavlished township range , sections and tracts, yada yada left a heckuva lot to be desired. Resurveying to verify/correct/ reestablish the early land plats is also a profession, and going strong these days.
In my ten years as an instrument man or even crew chief on survey crews , the largest discrepancy I encountered was a section corner that was 800 feet away from where it should be. Look on any good government topo or land use map from the Meeteetse area and you’ll find the legendary triangular Township 49-1/2 North up on Carter Mountain. What should’ve been a single east-west range line when located on the ground was two divergent lines radiating from an acknowledged section corner connecting to two different corners that should’ve been the same corner. A smart oil company land man strategically located a drilling pad and wildcat well site in that triangle, because it was a Phantom Zone that didn’t exist in the USGS mapping. Great way to avoid royalty payments and compliance… get in between federal land and state land and disclaim both. ( Since corrected, and it was a dry hole anyway ).
Over the years I figured out a lot of the public land west of Meeteetse was staked and platted wrong…the surveys were fraudulent. The legend was the originating government surveys were done by just drawing in the corners and lines in the Cowboy Bar on a card table or pool table , then somebody went out and using only a handheld compass ( notoriously inaccurate in the time ) would pace off the presumed distance, set the corner, and keep on marching. Sobriety and topological competency were optional. But the corners stood as established , and were used by everyone.
Or the time my crew could not find ANY of the USGS brass cap surveyed quarter corners on the Wind River Indian Reservation where non-Native private land abutted Reservation tribal land. We finally asked the white landowner farmer if he knew where the corners were that should’ve marked out the Rez-Anglo property line . He did. They were all in a pile behind his barn. He’d yanked them all out of the ground with his tractor and just set off plowing whatever ground suited him, since the Indians weren’t doing anything with it…
You likely will not find an honest licensed Wyoming surveyor who’s used public land corners over the years who can say with a straight face that all the goverjment corners were exactly where they should have been. Funny thing about stone corners and even brass caps sets in cement. They somehow move on their own, ending up residing in surprisingly convenient new locations. Wooden survey stakes are footloose as jackrabbits. ( Looking at you Mr. Subdivider )
My point to you is surveyed land corners and lines on paper and on the ground do not always agree. Many a Judge in court cases seeking to resolve the dispute based on inaccurate , nonexistent, or fraudulent surveys had to make a defacto ruling. They almost always rule that even if the late 1800’s corner or the long used road or old fenceline is in the ” wrong” place when the legal metes and bounds description and the ground truth disagree, the existing marker and historical use of the property sets the precedent at that point in time if overwhelming egregiousness with criminal intent is not obvious to one and all. Case dismissed . Until the Government and/or property owners/ stakeholders agree to an adjudicated survey to establish new boundaries for future use , that is.
In the case of this ridiculous Elk Mountain checkerboard leapfroggery, the corner is the corner. On paper at the Courthouse or set in brass and stone in the ground, the corner in question has to be reckoned as is where is. It can’t be otherwise for the purposes of this litigation. Which really is beside the point of it all…this ain’t about township and range or GPS coordinates . It’s all about the territorial imperative . Don’t put a surveyor on the stand… get an animal behaviorist instead .
Absolutely “spot-on,” Dewey!!!! Nice write-up! I would like to add, for those who use USGS topographic charts, (and the derived electronic data bases!) all section corners and township/range corners that are annotated with the “+” symbols on the charts are ESTIMATES, sometimes departing from legal land descriptions by a quarter of a mile or more!!! And that’s most of the Rocky Mountains!!! (For those who don’t know, it was tough stretching a chain over a cliff “back in the day”….and solar transits were also used on cloudy days!!!!
The story says they located the actual surveyed corner monuments using GIS as approximations and then hunting around?
I wonder how many people have actually read the “43 USC Ch. 25: UNLAWFUL INCLOSURES OR OCCUPANCY; OBSTRUCTING SETTLEMENT OR TRANSIT
From Title 43—PUBLIC LANDS” law? If you haven’t, here’s a link:
https://uscode.house.gov/view.xhtml?path=/prelim@title43/chapter25&edition=prelim
It’s very wordy but only takes a minute or two, at best, to read and understand it. Unambiguously, the last phrase of the first Section, §1061., states “and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any State or any of the Territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and prohibited.”
You don’t have to be an attorney to understand this. However, it takes an attorney to try to convince you you’re an idiot!
Private land owners should not be allowed to monopolize public use of state and federal lands. They pay very little for these leases. These leases are issued as grazing permits not whole use permits.
Assuming the judge to be a reasonable and logical person, he surely realizes there are many common-law doctrines which have been in existence for years, perhaps even a century or longer, some of which are nonsensical and likely irrelevant, especially if there are Wyoming laws in existence which imply that “low-level flight is not a trespass” and “airspace is vested in the several owners of the surface beneath”. It is also noteworthy that the judge mentions the removal of the OBSTRUCTING chain between the two marker post BEFORE the filing of the suit!
What’s the easement with sidewalks over private property? And boaters/ anglers who recreate on a creek that flows over private property? Seems like there are all sorts of exceptions to the ad coelum common doctrine. It’s clearly not absolute.
It is too bad there are multi millionaires (or anyone else) as greedy as Eiselman.
Our state needs the money from out of state hunters as much as the money from out of state ranchers. He uses our state and federal land (and probably pays less than taxes would be) to make a living, but he doesn’t want to let Wyoming profit from out of state hunters walking on it.
Yes, and Bernie Sanders , who Wyoming Democrats voted for in a Presidential primary, would say that Eshelman got so filthy rich because the medcations he produced cost too much, ripping off sick people.. Maybe part of the problem is hunting. Can the gazillionaire own the animals on his land as well as the land itself?
In the end. This lawsuit may mean nothing! Biden admin putting forth a conservation plan to allow eco friendly groups to long term lease all this land. It is sneaky way of getting this 30 x 30 plan in place. All that public land will be off limits.
As far as I see it – this is obstructing use of public land – I am assuming this rancher allows hunters on his land for private use and a whole lot of money. Makes Wyoming ranchers look like a mean greedy bunch. There needs to be a precedent se that says – 10 feet of land at each corner of adjacent land can in fact be used to cross over into public land going forward and this bullying from a Wyoming rancher needs to stop. Set precedent! The land owning of checkerboard was done originally by railroads to allow them access and it’s wrong to keep public lands non accessible.
Well said!
It seems to me that Eshelman’s attorney contradicted himself. He tells the judge in one breath that landowners own to the heavens above their land and in the next breath he answers the judge’s question about can the ” public access public land?”. He answers with yes, by helicopter or plane.
Good point. I personally don’t think the ranch owner has a leg to stand on and is grasping at every straw that blows by in the wind. The whole waypoint thing is laughable. I can save a waypoint at the North Pole while I am sitting on my couch.
there is no way this is not going to end up in a court ruling.
the judge has to determine who is in the wrong.
keeping in mind that the hunters have limited resources IF the ruling is in dr. eshelman’s favor would be wise to accept the decision & think twice next time.
if the judge rules in the hunter’s favor there is no way that ruling will not work it’s way through the appellate division to the supreme court.dr.eshelman definitely has the resources to push the issue.
Since the hunters don’t have the financial capacity for a long drawn out court battle, they should just admit fault?
Why do you support two different justice systems? One for the ultra wealthy and one for us common folk..
The hunters have an expansive network of allies who want this case to open access to corner-locked public lands throughout the country. These allies are helping with legal costs to the hunters. If you want to join in helping put public lands back in public hands, keep your eyes on GoFundMe and Wyoming Backcountry Hunters and Anglers..
Excellent idea.
I hope common sense prevails in this case. We all know what that conclusion would be. And I hope the extremely wealthy pharmaceutical guy who bought himself a big boy ranch in Wyoming has to compensate the hunters for the time and money he’s cost them. He has the resources to behave frivolously in a way that non-billionaires don’t.
Amy. Problem is in these days Common sense is not so common these days. Just look at Mr. Davis’s comments. Also in reality the Federal Government does not look at these “lands as public lands” any more. Our politicians have forgotten who they work for. Us the taxpayers is who. But also what collateral do you think was put up for all the money the government has barrowed? You got it. Public lands/minerals etc.