Access to natural resources

April 29, 2007 6:26 AM

A local homeowners association with a lake adjoining a major state highway on one side and a public Audubon wildlife sanctuary on another has prohibited dog walkers access to trails without payment of a $50 annual fee. Previously there were no restrictions to public access to this area—going back 50 years or more. An aggressive warden in need of anger management education threatens to call police and file trespassing charges even for walking with a dog on what must be a right of way area nearest the highway. What kind of lawyer or public interest group should we try to find to help us challenge this situation.?
posted by NorthCoastCafe to Law & Government (14 answers total)

Where do you live?
posted by ClaudiaCenter at 6:58 AM on April 29, 2007

Probably you have no case. The fact that in the past they permitted you to cross their private property doesn't grant you legally defensible rights to do so in future against their will.
posted by Steven C. Den Beste at 7:31 AM on April 29, 2007

You'd want to ask a land use or property lawyer about adverse possession resulting in an easement. I hesitate to mention adverse possession, because I think it pops up way too often in AskMe answers, but if the land has truly been used that way for 50 years you might have a case.

Or you could get a non-profit together and try to purchase your own easement from the land owner.
posted by falconred at 8:12 AM on April 29, 2007

Hmm, someone feel free to correct me if I'm wrong, but I think that adverse possession in this case would fail the adverse part of the test. If they previously had their permission to use/walk across the land, then its not AP.
posted by wuzandfuzz at 9:12 AM on April 29, 2007

They are certainly free to prohibit you from using improved walkways that were constructed on private property. There can be no question about that. Adverse possession is a silly argument here. The fact that someone allowed to conduct some activity on their private property in the past does not establish an obligation to do that forever.

However, the land adjacent to a public highway is quite likely another matter. The most likely scenario is that the government retained ownership of a swath of land on either side of the road. If that is the case, it is your land as much as their's. Even if it is private land, unimproved property adjacent to a public road often carries easements or other rights that would permit one to walk along them.

You could go to the local courthouse and look up the deed, which should include a surveyor's map that will show if the land is owned by the state. If it is privately owned, you would probably need to consult a local real estate attorney to resolve the issue, but my bet would be that you are permitted to walk within a few feet of the road in most every case where it is a public road.
posted by Lame_username at 9:39 AM on April 29, 2007

Don't listen to den Beste on this!


Contact a real estate lawyer right away.

I'm not your lawyer.
posted by Ironmouth at 10:15 AM on April 29, 2007

Just to interject a bit of practicality to the question. Isn't any lawyer going to cost a good deal more than $50/year? If it's a question of the principle, then that might be one thing, but if all you want is to be able to walk your dog it seems cheaper to just pony up the $50.
posted by willnot at 11:58 AM on April 29, 2007

A real estate attorney could probably clear this up better than any of our speculation.

That said, you may have a case for adverse possession, if people used the paths for 50 years WITHOUT PERMISSION and the rightful owners knew about it. Then you may have an easement by prescription. If they knew about people using the paths and allowed it, then you had, at best, a license, which can be revoked at will by the rightful landowners.

Lame is on point with the road easement; most public roads have easements for travel to the sides of them (this is why snowmobiles and ATV's in many states can ride along ditches without trespassing; they're on the state easement.

IANAL (though I am a law student), this is not legal advice, blah blah blah
posted by craven_morhead at 12:05 PM on April 29, 2007

What is a "public Audubon wildlife sanctuary?" If the Audubon Society owns it, then it's not publicly owned. They bought it to protect birds. Even the distant scent of dogs scares some birds. So maybe they talked to the adjacent private landowner about reducing the amount of dogs, and they kindly agreed. That is great. Good neighbors. They probably enjoy the birds, too. And you want to force them to let you onto their property? There are a gajillion public acres where you can take your dog. But you want to force your way onto private land adjacent to land specifically purchased to protect birds? Jeez.

One lawyer group you could call is the super-frightening anti-environmentalist group the Pacific Legal Foundation. They're really in favor of private property rights, but they also hate birds* and have done a lot of work with dog owners, so you might have a chance with them. Me, I'd just walk my dog somewhere people weren't spending their hard-earned money for the specific purpose of giving wild birds a refuge, which is like, almost everywhere else.

Nothing personal to you, and sorry for the attitude, but it's like -- the whole world is so affected by people, and so many people have a presumptive attitude that "I should get to take my dog / snowmobile / jeep wherever I choose, all those other animals be damned" -- even the faintest hint of it sets me off. Nothing against you and your dog, who I imagine is probably really nice.

* efforts to protect birds, at least
posted by salvia at 1:20 PM on April 29, 2007 [1 favorite]

I meant, "are both probably really nice."</small
posted by salvia at 1:27 PM on April 29, 2007

It's unclear to me if your are using the privately own trails to get to the highway/sanctuary (where you may have right of way) or that you are using the trails to simply walk your dog. There can be a difference between the two. (A friend of mine has right of way over private property to get to a lake in his area, but he can't use the private property for other use.)

Also, I came across this Massachusetts FAQ on beach access that illustrates how crazy right of way laws can be. In mentions that you are allowed to walk on the beach if you are going fishing but you not allow to walk on the beach just to walk on the beach. Crazy.
posted by sexymofo at 2:54 PM on April 29, 2007

Doing a Google Search for "audobon wildlife sanctuary" lists many sites, all of which rightly prohibit dogs. I'm sure you walk your dog with a leash while on the sanctuary but I am not quite sure why you think that should be a right? As has been mentioned, Audobon wildlife sanctuaries are not "public" land. We have an Audobon Society Park near to eh city but it definitely restricts access to members and does not allow dogs or cats.

If you think you are in the right, you may want to visit the County offices and find out exactly what is public land and what is private land. I seriously doubt you have a case for access to private land. Maybe you should devote your energy towards finding a real public area which would allow dogs to roam free without interfering with wildlife.
posted by JJ86 at 6:26 PM on April 29, 2007

But you want to force your way onto private land adjacent to land specifically purchased to protect birds? Jeez.


It sounds to me as if the poster wants to know if the fee now being charged is legal. That doesn't really have anything to do with "forcing their way onto private land". Clearly the people charging the fee have no issue with anyone using the trail as long as they've paid up, which doesn't argue an environmentally sensitive motivation as much as a financial incentive.
posted by oneirodynia at 9:53 AM on April 30, 2007

doesn't argue an environmentally sensitive motivation as much as a financial incentive

Yeah, given the Audubon part and the focus on not walkers, but dog walkers, and the word "warden" as opposed to say "security guard," I did jump to the conclusion that they were using this as a market mechanism to reduce the number of dogs. But you're right, maybe that's not true. But then, why only the dog walkers? Or maybe they charge all walkers, but the post only says one.
posted by salvia at 10:07 AM on May 1, 2007