Judge scrutinizes corner-crossing claims at Casper hearing

On May 10,  Chief U.S. District Judge Scott Skavdahl said he “has plenty of things to chew on” as he mulls over a corner-crossing suit alleging four hunters – Zach Smith, Bradly Cape, Phillip Yeomans and John Slowensky – trespassed by passing through the air above a private ranch.

In response to an hour and 20 minutes of arguments at a motions hearing in Casper, 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 he instead make a summary judgment in their favor.

Rather than immediately rule, Skavdahl promised a decision on the summary-judgment requests soon in the case, which is otherwise scheduled to go to trial in June.

Corner crossing

This civil case could establish whether corner crossing – the act of 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.

In a deposition, Eshelman says he believes private landowners should have control over who crosses their private land, including the air above. 

On the other hand, the hunters believe passing through the airspace is not trespassing and 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.

“If corner crossing is illegal, does it 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?” he asked.

“Did two fence posts on Eshelman property – chained together across a common corner with public land – constitute an obstruction prohibited by federal law?” he continued. “If corner crossing is allowed, does it damage a property owner by diminishing the value of his or her land?”

“I believe the judge asked both parties some hard questions,” said Eshelman’s Attorney Greg Weisz 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,” Weisz told the judge, citing a common-law doctrine known as ad coelum. “You own to the heavens.”

Because the checkerboard corners come together in an infinitesimally small point, Weisz noted it is physically impossible to corner cross without physically invading the airspace.

Skavdahl asked, “Is the public land no longer public? Can the public access public land?”

Weisz replied that they can – by helicopter or plane.

The hunters’ attorneys Ryan Semerad and Lee Mickus maintain the airspace above common corners is, according to Wyoming law, vested in several owners of the surface beneath, and therefore, passing through it is not trespassing.

“I don’t think this is an artificial reading,” Semerad said. “If one views the law otherwise, then the 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.

“Is exclusion not part of the ‘bundle of sticks?’” the judge asked. “Are the hunters trying to take a stick?”

But, 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,” Skavdahl continued. “It’s never been part of their bundle of sticks.”

Semerad referenced the federal Unlawful Inclosures Act (UIA) of 1885, which the 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.

He estimated at Elk Mountain Ranch, this amounts to a minimum of 6,000 acres

“They do not want to allow access because they want to preserve a perceived monopoly of this public land,” he said.

“The Wyoming Constitution says no one shall have right and title to unappropriated lands,” Semerad added. “Wyoming law also says low-level flight is not a trespass unless it causes some kind of damage.”

“Stepping across a corner can’t be so far different from such low-level flight,” he further stated.

Unlawful Inclosures Act

The hunters say 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. 

Semerad noted Eshelman’s lawsuit itself is “a $7.5 million monumental obstruction.” 

“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 he believes 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 tell people to stay off of Elk Mountain Ranch property,” Weisz said. “This is dramatically different from erecting an obstructing fence. They’re not even close.”

“Those did not obstruct the defendants,” Weisz said, noting the hunters swung themselves around the posts in 2020 and climbed over them using a homemade ladder in 2021.

“Furthermore, Grende was able to pass between the posts,” Weisz said. “But, a person with a pack full of gear could not.”

Skavdahl observed Elk Mountain Ranch removed the chain about a week before the filing of the 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, places where the UIA does not apply,” Weisz said.

$7.75 million devaluation

Eshelman’s civil suit originally contended the Missouri hunters devalued his property by $7.75 million or more by corner crossing.

“This is assuming every single corner is taken by the government,” Weisz said.

Semerad agreed prohibiting corner crossing creates a premium value for the landowner, but he questioned whether it’s justified or legal.

“They want something they thought they had,” he said. “They’re losing a premium that never should have been there.”

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 last month, Eshelman alleged he had proof at least one hunter actually stepped on his property and identified the spot with a digital marker now labeled Waypoint 6.

Resolving the factual dispute could require a trial and a jury verdict. 

The Waypoint 6 allegation arises from data attributed to Smith’s cell phone.

The hunters dispute 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.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in the state. He can be reached at angus@wyofile.com. This article was originally published in WyoFile on May 15.