A federal judge refused last week to dismiss a civil suit against four corner-crossing hunters, ruling that Elk Mountain Ranch owner Fred Eshelman has a “plausible claim” to bring in his allegations of trespass and damage.
U.S. District Judge Scott Skavdahl’s July 20 order advanced the court action on Eshelman’s claim that he has a right to exclude others from the airspace above his property. The four Missouri hunters crossed from one piece of U.S. Bureau of Land Management land to another at the four-corner intersection of private and public property arranged in a checkerboard-pattern of ownership.
In their act of corner crossing, the hunters claim they did not set foot on Elk Mountain Ranch land; A Carbon County Circuit Court jury in April found them not guilty of criminal trespass and trespassing to hunt, misdemeanor charges filed after their 2021 trip to Wyoming.
“With the allegations that Defendants trespassed through Plaintiffs airspace when corner crossing, Plaintiff has stated a plausible claim for relief.”
U.S. District Judge Scott Skavdahl
The cases involving Missouri hunters Phillip Yeomans, Bradly Cape, John Slowensky and Zachary Smith could have implications for accessing an estimated 8.3 million acres of public land across the West, 2.44 million in Wyoming alone. That’s the acreage estimated to be “corner locked” by any interpretation that corner crossing is illegal.
Eshelman’s civil suit claims the hunters trespassed because they violated his airspace, a dimension from which he asserts he may exclude others.
“The law recognizes such a right [to exclude others] at least to an extent,” Skavdahl wrote. “With the allegations that Defendants trespassed through Plaintiffs airspace when corner crossing, Plaintiff has stated a plausible claim for relief…”
Judge rejects dismissal
Further, Skavdahl refused the hunters’ request to dismiss the civil suit based on the federal Unlawful Inclosures Act of 1885. That law states in part that “all inclosures of any public lands … are declared to be unlawful.”
The hunters argue that federal law preempts the Wyoming trespass law on which Eshelman based his civil suit. The UIA allows them to go from one piece of public property to another, they believe.
Eshelman filed his civil suit in Wyoming District Court. But the hunters argued that the federal UIA law could figure in the case and so it should be heard in U.S. District Court. Skavdahl agreed.
The hunters may use that federal law as a defense, Skavdahl wrote. But there’s not enough information on the record — particularly regarding the fencing in the area — to allow him to dismiss Eshelman’s suit based on the 1885 statute, the judge wrote.
“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.
Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads.
In the 2021 incident, the hunters found two chest-high fence posts driven into two separate sections of private ground at a four-parcel checkerboard intersection at the Elk Mountain Ranch in Carbon County. A photograph of the posts appears to show them on the private parcels and connected to one another with a chain and wire.
The hunters fashioned, brought and used a ladder to climb over the obstruction to pass from one section of BLM land to another. They hunted on public land in the area, corner crossing to reach hundreds of acres where they killed elk and a deer.
During the hunters’ trial earlier this year a witness said the chain linking the two posts had been removed since their outing.
After acquitting the hunters, members of the Carbon County jury would not explain to the press the reasoning behind their not-guilty verdicts.
In advancing Eshelman’s civil case, Skavdahl ordered a magistrate to schedule an initial pretrial conference for the parties to exchange information about witnesses and evidence.Eshelman, a North Carolina businessman who made a fortune in the pharmaceutical industry, owns the Elk Mountain Ranch that covers more than 20,000 acres on wildlife-rich Elk Mountain. He asked that a judge declare the men guilty of civil trespass outright, prohibit them from corner crossing and that a jury trial only resolve the damages due to him, damages he has not completely enumerated.
If I stand on my property, a foot from the property line, and extend my arm out over the property line am I trespassing on my neighbor’s property?
What actual damages could the land owner claim? Passing your arm thru air in no way damages it, distorts it or prevents anyone else from using it.
What is the possible relief in this lawsuit ? It could be up the entire purchase price of this property. The plaintiff bought this property for their sole enjoyment and now a third party is making use of their land. The land is now worthless to them. Who would buy land for someone else to enjoy ? If someone was allowed to sit in a lawn chair in your front yard would you enjoy your home anymore? As Magagna said you are given a certain amount of air space about your land. It’s only right you didn’t buy that land for others to use .
The way it is explained in the story, the hunters passed from one parcel of public land to another, never touching the land that was privately owned. They for a few seconds they did infringe on the airspace directly above the land but since air is fluid how can there be any actual damages? Once they passed from one parcel to another there was no sign that they were there.
This is a rich guy pushing regular folks into defending themselves and paying for lawyers they cannot afford. Plain and simple this is a case of rich v poor and it is absolute BS! There are no financial damages. Eshelman can afford attorneys to fight with criminal and civil charges. Regular folks are being shafted by rich people and corporations. Push back.
It would be nice if this judge is angling for a Federal legislative solution to this controversy. In other decisions he’s given, he seems like a reasonable judge. I can see a landowner’s concerns when a block of Federal land is completely surrounded by private land. I don’t think I would want all sorts of people actually crossing my property, either, at least not without permission. Obviously, this corner crossing is different. If the Federal government would pass a law that says that at every circumstance such as this, the public shall have a 10 foot right-of-way, the problem would be solved, at least for the public.
Talk about rich land owners being petty –we the people should bring $200 million suit for their corner locking chain intruding over public land airspace! There are state mandated Building Setbacks & Easements which set a precedence for leaving clearance from property boundaries which means if land around property edges is regulated by Fed/State then airspace isn’t a freerealm of private ownership/control.
This entire trespass lawsuit is so BIZARRE OFF THE CHART. Rich drug man without rich common sense. How about lawsuits against private aircraft, military aircraft, satellites, drones, commercial airlines. Obviously in the air space above said property would reach trillions of square miles. Grow a brain. Throw out this twisted goofiness.
Last I checked, ONLY the Federal Government (via the FAA) has jurisdiction over the airspace in the entire United States. Landowners hold the land rights, they may hold mineral right (if said mineral rights are stipulated in the title/deed and uncontested by the US Gov’t). This smacks of yet another Carolina Pharma rich boy having a tantrum over the lollipop he just has to have.
Furthermore, as others have commented, same said landowner was in violation of federal law by impeding access to federal public lands at the corners.
Landowner violated federal law when his chain crossed the airspace where the 2 corners of federal land touch. Damages are owed by the landowner to every public land user he prohibited from accessing public lands belonging to you and me.
defendants should have argued that the plaintiff’s complaint should be considered de minimis at common law: not worthy of judicial attention.
Claiming to own the airspace above one’s private property is rediculous. If this were the case, every plane or helicopter traveling over private property could be found to be tespassing. This case is important because the proper verdict will unlock millions of acres of previously landlocked public land to access by the public.
It’s time for the Government to use “eminent domain” to establish for the “PUBLIC” to have full access to “PUBLIC LAND” !! Also if “airspace trespassing” is allowed; what about airplanes passing over???
This has to be the most ridiculous law suit ever. Air Space, does that include the air we breathe?
As long as you vote for ranchers as your reps, you will have this nonsense going on. If you want a change, you’re going to have to vote differently. It’s up to us. I know it’s hard to find someone decent to vote for (almost impossible), but man up.
Sorry meant plaintiff above… not defendant
On the one hand trespassing is bad on the other… I kind of hope the judge finds for the defendant, awards him $50 in damages, then eminent domains 100 feet of his property (say 49 feet either side of those posts) so this doesn’t occur again.
What EXACTLY WHAT OR COULD of been Damaged? A old fence post? Foot prints in the dirt. Bear in mind he does not own the land the hunters hunted on. Nor the animals taken
Larry makes an excellent point. What exactly could his “damages” possibly be? Could this be a back handed way for private landowners to lay claim to public wildlife? An on what basis can a landowner lay claim to airspace? If allowed, how high up does his airspace go? Just high enough to keep the public off public lands I bet would satisfy him.