Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the February 3, 2014 mailing of "Constructive Notice":

The Next Judicial Taking Case?

Despite more than 100 years of case law precedent and statutory enactments, the Montana Supreme Court has determined that a public right-of-way has arisen over an area outside of the path of actual travel. PLAA, Inc. v. Board of County Commissioners, et al., 2014 MT 10 (2014).

The case involved a dispute over public access across private property to the banks of the Ruby River. The parties stipulated that a right-of-way over Seyler Lane and the Seyler Bridge had arisen for the benefit of the public after many years of adverse public use. The fight stemmed from claims that the right-of-way included the right to leave the traveled road surface and travel alongside the bridge down to the river bank.

The Court departed from black-letter law that prescriptive easements are limited to the area of actual use during the prescriptive period. In addition, there are several statutory provisions that appear to circumscribe the use to which public highway easements may be put, regardless of the mode of acquisition. The private owners petition for rehearing pointedly argues that by retroactively altering settled principles of state property law, this Court has effected a textbook judicial taking.


Montana has been at the forefront of enlarging public access to non-navigable rivers and streams. The present Montana Chief Justice (and author of the majority opinion in the instant case) was a celebrated advocate for this cause during his tenure as Attorney General (2000-2008). A 1985 Montana statute mandated non-navigable, privately-owned streams be open to the public. Another statute denies compulsory access to the banks over private property. An attempt to invalidate the 1985 statute in 2005 was denied certiorari by the U.S. Supreme Court.