WGFD easement causes conflictWritten by Christy Hemken
“This case will impact whether landowners can safely grant an easement to the Wyoming Game and Fish Department for public access, and still protect their property rights,” says Harriet Hageman of Hageman & Brighton in Cheyenne, who is the attorney for the four landowners involved with the easement.
The first briefs in the case were filed last fall, and the initial hearing on the case took place in Casper District Court on Jan. 30.
Clarence and Frances Lusby granted the Lusby Easement to the WGFD on Dec. 7, 1964, the purpose of which was to provide a 100-foot walking easement for public fishing and migratory water fowl hunting along a portion of the North Platte River, to provide for public parking and to allow for boat launching.
The land subject to the Lusby Easement has since been purchased by Ron and Stacey Richner, Corey and Kathryn Davison, Michael Rempe and the Marton Ranch, Inc. They have filed a lawsuit requesting the court to, among other things, require the WGFD to enforce the terms and conditions of the Lusby Easement and to stop trespassing on their private land outside of the boundaries of the easement.
Richner says the WGFD has failed to properly patrol the area, has failed to enforce the terms of the easement and has allowed the public to trespass on his and the others’ property. He claims he and the other landowners want nothing more than enforcement of the easement, which includes requiring the public to stay within the boundaries of the walking easement and to stay off the private land that was never included.
“The crux of the matter is essentially the scope of the easement and the ability to use it for which it was purchased,” says Wyoming’s Assistant Attorney General Levi Martin, who represents the WGFD, mentioning the WGFD thinks the easement’s provisions are clear and reflected by virtue of the purpose of the easement itself.
The easement document grants “a permanent walking easement, one hundred feet in width, for public fishing and migratory waterfowl hunting on the North Platte River.” The disagreement is over whether that 100 feet begins at the river’s high water line, or at midstream.
According to the Easement document, the Plat and Survey conducted in Oct. 1964 by Worthington, Lenhart and Assoc., Inc. of Casper is “expressly made a part of this instrument and by reference incorporated herein.” That Plat and Survey describes the boundary as being the “high water line” of the North Platte River. It is the landowners’ position that the Easement, Plat and Survey and the legal description of the location of the easement make it clear the public does not have access to the mid-point of the river. In Wyoming, the landowner owns the bed of a stream.
The WGFD contends the easement’s sales contract, dated June 17, 1964, indicates “midstream” as the legal starting point of the 100-foot easement. The sales contract states, “Said easement shall extend from midstream of the said North Platte River outward to a point 100 feet above and beyond the high water line to the left of said river looking downstream insofar as it traverses the above described portion.”
Richner points out, however, that the sales contract is not what legally controls. “What counts is what was recorded in the Easement,” he says. Although the WGFD says the easement runs to midstream, the WGFD signage on the easement reads “All pedestrian access for fishing and waterfowl hunting extends 100 ft. above high water line…”
“There are so many discrepancies with the Game and Fish Department,” says Richner. “They say their signage is perfectly fine, but it’s not, according to what they’re saying in court. They want to claim some sort of adverse possession, but they can’t because their own signs have always said from the high water line out.”
Martin says the scope of the easement includes crossing over the high water line into the river. “It’s hard to fish if you can’t get into the river to retrieve your fish, and it’s hard to hunt waterfowl if you can’t get in to get your birds,” he says. “And you have to launch a boat from the bank.” He continues that it’s a 100-foot walking easement, but that doesn’t preclude the river side of that line from going into the river.
“At this point we’re looking at what the easement document says. We say it’s clear and unambiguous and it needs to be enforced according to its terms,” explains Hageman. “The state claims the easement document does not control the relationship between the parties, and does not define what access and use may be made by the public. The state wants to ‘interpret’ the easement. That should be scary for every landowner in the state who has entered into an easement.”
Hageman adds, “The Game and Fish says the easement doesn’t mean what it says, but we’ve requested the court to enjoin the Game and Fish to enforce the easement.” The landowners also seek damages for trespass.
“This isn’t the first time this kind of thing has been raised,” she continues. “The WGFD has other easements on private land that provide access to the midpoint of a stream. The Lusby Easement doesn’t. This easement says from the high water mark out, but the Game and Fish wants the easement to say it goes to the midpoint of the river, but that’s not what it says and that’s what the fight will be over.”
In addition to the discrepancy of the boundaries, the easement also identified the location of a boat ramp. The WGFD, however, has moved the boat launching area and it is not located in its designated area. “The public have taken out a whole bank near one of the parking areas when they already had a designated boat ramp,” says Richner.
Regarding his hay operation, Richner says one of his biggest problems is dust from the roadway caused by heavy traffic to the access area – up to 120 trips per day. “All the dust from traffic blows right onto my hay fields and I lose 10 to 15 tons of hay a year that I can’t sell as quality hay. Access is not supposed to burden adjacent lands, and that’s called burdening, in my opinion.”
Already Richner says he would never grant a state agency a perpetual easement. “I would recommend to anyone not to give a perpetual easement on anything. You never know what the future might hold and what your family might have to do. But what’s written is written, and that’s what we’re trying to abide by. The state and public should have to abide by what is written.”
The WGFD argues the public has used lands outside of the easement for so long that there is a “prescriptive easement” across the landowners’ property, regardless of whether such lands are included in the Lusby Easement.
“If the Game and Fish is successful in arguing that they can allow the public to trespass, and that over time such trespass can ripen into a prescriptive easement, Wyoming landowners will be much more reluctant to grant access to their private property. It makes sense; our landowners simply cannot risk losing their private property rights if they are not vigilant 24 hours a day to prevent people from trespassing, or using the property in ways they shouldn’t,” adds Hageman.
“It’s just aggravating because the Game and Fish won’t come to the table and acknowledge the right and wrong, but if the law is this way I might as well move,” states Richner. “I don’t want to deal with it.”
Richner indicates the landowners’ willingness to take the case to Wyoming’s Supreme Court. “Otherwise they’ll keep taking from the landowners. It makes a person not want to give any access if they can come in and do this sort of thing and change it however they want.”
Martin says that, at the end of the day, the WGFD is trying to get certainty out there for sportsmen looking to use the Lusby Access Area.
In mid-February the attorneys and the Court will set a schedule, after which the lawsuit will proceed with future court dates.