A federal court recently found that the Forest Service’s actions regarding a trail over private land to a wilderness area created a public right to use of the trail under an easement. The court noted that the Forest Service and public actions regarding the trail over more than a five year period was sufficiently obvious to the landowner that it put the landowner on notice that the Forest Service was claiming a right to use of the land. The Forest Service had designated the trail as a Forest Service trail on its maps, which resulted in frequent public use. The evidence also showed that the landowner was fully aware of this public use for decades and did not object. In addition, the Forest Service maintained the trail since 1959, including logging activity, brushing, removing rocks and repairing a bridge on the trail.
While merely allowing a neighbor to access private property may not create a right to that access, the court found the use at issue was not by neighbors to the landowner. The court also noted that most of the trail users did not ask permission, which otherwise would show permissive use that would not lead to a right to use. The landowner also argued that the Forest Service’s attempts to purchase the land when the dispute arose was an admission that the agency did not have an easement. The court rejected this argument based on the agency’s assertion that its policy was to get easements in writing even when it believed the easement already existed.