Sometime this fall, we will learn if the Supreme Court of the United States will take up the corner-crossing case from Wyoming, which will make or break our right to access land we own.
Ruling for access is the make. The break is that the land continues as the de facto private property of adjoining landowners, exclusively enjoying the benefits of that land without paying any of the costs.
No taxes. No maintenance. Just a free ride on the public dime.
If you’ve spent the last decade stranded on a deserted tropical isle, here’s a refresher. Corner crossings involve checkerboards of public and private land ownership in Western states like Montana and Wyoming. This oddball ownership pattern is a holdover from the railroad building days of the 1800s. The land was given to the railroads as an enticement for laying track across the continent.
Fast forward 100 years, and those checkerboard acres are worth something. A lot of something. What was once viewed as near-worthless sagebrush steppe is now virtually priceless. But most of those sections of public land, white squares of private, have been inaccessible, at a time when recreational pressure is greater than ever.
Access is now one of the most valuable commodities in the West, and the corners where private and public land intersect have long been a frustration for the public owners of that land. The point where the property lines form four corners is infinitesimally small and it’s long been a matter of disagreement as to whether someone could step over that corner, without creating a trespass.
Four hunters decided to test that idea in 2021, when they used a step ladder to cross from one piece of public property to another. The owner of the two private squares, Fred Eshelman, owner of Elk Mountain Ranch in Carbon County, Wyoming, urged local authorities to cite the hunters for trespass. They were cited, but a jury found the hunters not guilty. Eshelman also sued the hunters in civil court for trespass. He lost that case, too. The rulings were upheld in federal courts, including the 10th Circuit.
After the 10th Circuit ruling, Eshelman served notice he wanted the Supreme Court to consider his appeal. That’s where it sits. We’re waiting on the court’s decision to take up the case, which will hinge on laws passed by Congress and previous Supreme Court rulings.
What does the law say? The Unlawful Inclosures Act, or UIA, passed by Congress in 1885, prohibits individuals and corporations from enclosing public lands, to prevent the use of public lands, or the use of force or threats to obstruct public entry.
SCOTUS applied UIA in 1897, in Camfield v. United States, determining the UIA was a constitutional exercise of Congress’s authority to protect “public lands from nuisances erected upon adjoining property.” And the 10th Circuit later used Camfield to rule a private landowner had to remove a fence that prevented access to public land.
Eshelman’s argument rests on Leo Sheep Co. v. United States. In that case, the Supes ruled in 1979 that there was no implied easement that would allow the government to build a road through a corner crossing to provide access.
While UIA is clear about access, it doesn’t address corner crossings, specifically. Leo Sheep, Eshelman’s main argument, is about building a road, not stepping over a corner pin. It seems the law and precedent is mostly on the side of access. But the Roberts’ Court hasn’t let precedent stop it from ruling mostly for what seems its preferred outcome.
What we don’t need right now is one of the court’s shadow docket rulings. The shadow docket is a bit of inside baseball for the court. It allows SCOTUS to set aside lower court rulings it disagrees with, without hearing the case.
The 10th Circuit’s ruling should stand. I can’t say I’m confident it will.