Appeals court OKs corner crossing to access public land

A federal appeals court dismissed a civil trespassing suit against four elk hunters Tuesday and affirmed the right of people to “corner cross” as a means to access otherwise blocked public land.

The term corner crossing refers to stepping from one corner of public land to another when the land is interspersed with private parcels in a checkerboard fashion.

In 2000 and again in 2001, four Missouri elk hunters traveled to Wyoming to hunt isolated public land surrounded by the private Iron Bar Ranch. In doing so, they ever so briefly crossed through the airspace of the private land when stepping from one public parcel to another.

The ranch owners and managers sought to have the men prosecuted for criminal trespass but the case was dismissed. The ranchers then pursued a civil case against the men, claiming they diminished the ranch’s value by $9 million.

A district court rejected the case in 2023 and the 10th Circuit Court of Appeals affirmed the decision Tuesday.

More than 8 million acres of state and federal public land in the West is surrounded by private parcels in a checkerboard fashion. The pattern is a legacy of the federal government’s practice in the mid-1800s of granting large tracts of land to railroad companies to incentivize the construction of rail lines.

The case hinged on the federal Unlawful Inclosure Act of 1885. Owners of private property are allowed to control at least some of the airspace above their land. For example, the eaves of your neighbor’s home can’t extend over your property.

But almost as soon as the grants of federal lands to railroad companies happened, the checkerboard pattern led to disputes between ranchers and homesteaders and precipitated “range wars.” Congress sought to reduce the conflict with the Unlawful Inclosures Act that prohibits the inclosure and exclusive use of federal land without a claim or title and forbids the inclosure of public land.

“In short, the two sections together provide that any inclosure of public land is prohibited, and no one may completely prevent or obstruct another from peacefully entering or freely passing over or through public lands,” the court ruled.

Several environmental and public land advocacy organizations joined the case as friends of the court and celebrated the decision.

“Today’s decision clarifies that public lands really are public,” Tom Delehanty, senior attorney with Earthjustice’s Rocky Mountain Office said in a news release. “This case was about a multi-millionaire trying to prevent access to public lands so he could have it for himself. We’re grateful that the Tenth Circuit has rejected that unjust land-grab attempt and affirmed the public’s right to access and enjoy public lands.”

Barker may be contacted at ebarker@lmtribune.com