Unmistakable Marks: Swamp and Circumstance
Throughout its development, applications of real property law in this country have been shaped by geographic features and variations in climate. The presence of mineral deposits, access to water — whether for consumption or travel — and extremes of terrain have had significant effects on the many ways that real property law has developed in the various state courts.
Several examples are found in basic rules of adverse possession. Courts tend to favor general guiding principles over specific lists because variations in topography, ground cover and proximity to major population centers can all affect the ways that a prescriptive claim can be proved. As admirably stated in the Kansas decision Crone v. Nuss: 46 Kan. App. 2d 436; 263 P.3d 809 (2011): Actions necessary to constitute adverse possession …are relative to the type and nature of the property and surrounding circumstances, taking into consideration the particular land, its condition, character, locality, and appropriate use. In the case under consideration, the court observes that the subject parcel is remote and wooded, has no road access and cannot be farmed.
A more extreme illustration of this principle can be found in the North Carolina decision Tredwell v. Reddick: 23 N.C. 56 (1840). In this instance, adverse possession was proved by using marginal swampland for the only use it was susceptible to — the production of shingles.
Extreme weather conditions can affect the adverse possession requirement for continuous use. Vesey v. Green: 35 P.3d 14 (2001) describes the use of a tract in a remote area of Alaska by Green, who built a cabin and cleared land over the course of many years. Vesey argued that Green did not fulfill the requirement for continuous use because she only worked on the land in the summer and traveled to California each winter.
The Alaska court concluded that seasonal use could be considered continuous, particularly in remote areas that were commonly used only during the summer months. Discussion of the continuity requirement includes several extreme examples from other states: In Nome 2000, we stated that continuity required “only that the land be used for the statutory period as an average owner of similar property would use it.” This flexible standard for continuous use in adverse possession claims is appropriate to Alaska’s geography and climate, and is established in our jurisprudence. We found that the Nome 2000 claimants, a family that had made periodic subsistence use of a rural parcel of land, satisfied the continuity requirement for adverse possession. In reaching this conclusion, we cited with approval a Utah case in which pasturing sheep for three weeks each year was found sufficient to adversely possess land suitable only for grazing, and a Michigan case in which six yearly visits to a hunting cabin and some timber cutting were found sufficient to possess wild and undeveloped land.
Rugged terrain and valuable mineral deposits contributed to the development of unique variations of easement law in the Colorado Rockies. One Colorado law creates statutory authority for easements intended exclusively for the transport of quartz. C.R.S. 34-48-104 states: Every miner has the right-of-way across any and all claims for the purpose of hauling quartz from his claim.
In a separate context, the Colorado court has applied a creative interpretation to a legislative act in order to recognize the significance of mountain trails because of their importance in the early development of the state. While a hiking trail might not be considered as critical infrastructure in some areas of the country, these early paths were major conduits for commerce and trade. As a result, specific legal constructions have developed to meet this unusual situation.
In a 2015 decision, a dispute over a mountain trail was a critical issue in Gold Hill Development Co. v. TSG Ski and Golf: 2015 COA 177. The relevant portion of the ruling for this article finds San Miguel County (SMC) arguing the existence of a public way based on Colorado Statute 43-2-201(1)(c). The language of this statute provides for the creation of a public highway by prescription for: …roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years… In this case, the “highway” under consideration was a combination of portions of the Wasatch, Modena and East Fork trails as shown on a 1927 U.S. Forest Service map. The court cites significant evidence of the existence of these trails beginning in 1906 and continuing to the present day and upholds the right of public access along the trail.
In Mcintyre v. Gunnison Co.: 86 P.3d 402 (2004), the Colorado court considers the intent of 43-2-201(1)(c) and concludes that not every “casual footpath” will be considered a highway under the statute. However, …the legislature did intend that the courts consider the characteristics, conditions, and locations of the ways in applying the statute.
Dispute Over Navigation in the Adirondacks
The Adirondacks in New York provide another example of rugged terrain and travel difficulties as the basis for an unusual application of common law principles — in this case, the “navigable-in-fact” test for determining the extent of the public right to navigate small mountain streams. The unusual application of the test is highlighted in the recent decision Friends of Thayer Lake v. Brown: 126 A.D.3d 22; 1 N.Y.S.3d 504 (2015).
The disputed watercourse consisted of an interlinked system of streams and ponds known as the “Mud Pond Waterway.” These interconnected waters were apparently used for years for access by hunters and travelers, despite the formidable challenges facing anyone contemplating travel in the area. It had been used for many years to transport supplies to a remote camp and for travel by trappers. More recently, the Mud Pond Waterway was incorporated into the “Lila Traverse” and became popular with recreational boaters. The dispute apparently began when private owners near Mud Pond stretched cables across the stream to block water travel.
Testimony and evidence presented in the case make no attempt to minimize the difficulties of water travel in the Adirondacks. Several beaver dams blocked the streams, brush and fallen trees were common nuisances, and at least one stretch of rapids was avoided completely by a portage. The dissenting opinion describes the Lila Traverse in a wealth of detail, including a total of six portages, one of which is almost 2 miles in length.
In many areas, it is likely that a series of waterways interconnected by such a tenuous linkage would not be considered navigable-in-fact. However, the unique history of the area combined with lack of roads and the general inaccessibility of the relevant tracts led the majority to conclude that a public right of navigation existed in this instance. It should be noted that this dispute is ongoing and additional developments are possible.
Similar variations of the navigable-in-fact test have been found in Gulf coast states where pirogues were commonly used for travel. These small boats were designed to operate in water so shallow that they were sometimes described as floatable on a heavy layer of dew.
Shifting coastal dunes, swamps, rugged mountain ranges and inaccessible coastlines all may contribute to surprising variations of conventional legal principles. Complex issues may arise where littoral tracts are cut off from beach access by changing shorelines. The existence of multiple coal seams — each with a separate owner — can create legal nightmares of conflicting rights of access across the surface. Land use professionals must remember that these permutations are inevitable when unusual geographic features or weather patterns are considered.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.