Hayes Creek Road, located on the west side of the valley south of Hamilton in the Charlos Heights area, will remain open up to the Forest Service boundary where public vehicle traffic is restricted.
At a meeting on October 23, the Ravalli County Commissioners took the position that Hayes Creek Road is a public road, created by prescriptive easement until a court determines otherwise. This means, according to Deputy County Attorney Dan Browder, that the gate placed across the roadway by a local landowner can be considered an obstruction to the public right of way. The commissioners also moved to contact the landowners about the obstruction along with a notice that the obstruction must be removed immediately.
In Montana, the public establishes a prescriptive easement across private property after five years of adverse use. The commissioners viewed aerial photos from the 1970s showing that the current roadway, which deviates from the platted right of way, was in place at that time. Browder said that there is a 1942 aerial photo that “shows it pretty much where it is now.” Browder, from the beginning maintained that the county has a very strong case for prescriptive easement based on this evidence.
In terms of the county’s legal liabilities over the issue he noted that the landowner who placed the gate across the road, Mr. German, does not own the property on which the gate was placed, which belongs to a woman named Patricia Jennings. Consequently German may lack standing to argue his point in court.
Darby District Ranger Eric Winthers said that the Forest Service believes it is a county road up to the Forest Service boundary where it becomes a Forest Service road. The forest road is currently closed to public vehicular use (except for one property owner further up the road requiring access) but open to the public on foot or by horse.
Winthers said that the agency has understood that it is a county road since a 1989 letter from the Ravalli County Attorney at the time confirmed it. “We recommend maintaining the status quo,” he said.
Commission Chair Jeff Burrows said that even if the road was built within the platted easement it would not remove the prescriptive right that the public already has on the other roadway and would not address the issues being raised by the landowners which have more to do with littering and trespassing problems.
Commissioner Greg Chilcott said, “It would be nice to be talking to the property owner, Mrs. Jennings.”
After going round and round with Mr. German without any real resolution, the commissioners finally made their decision to contact the landowners and have the obstruction removed.