Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the February 26, 2018 mailing of "Constructive Notice":

The Wild Lands Exception

Some states recognize a “wild lands” (or “woodlands”) exception to the presumption of “hostility” frequently accorded adverse possession or prescriptive easement claims. Generally speaking, the exception presumes the use or possession is permissive and requires one claiming such rights over “wild lands” prove hostility by more than the open use itself. Rationales for the exception usually stem from either local custom or the unlikelihood of the record owner objecting because the use of wild or unimproved territory would fail to be brought to their attention. The tricky question involves determining when the land is sufficiently “wild” to invoke the exception.

In Bernard C. Swartz Declaration Of Trust Dated February 25, 2009 v. Kathleen L. Morrison Trust, No. 335470 (Mich. Ct. of Appeals, Feb. 20. 2018) (unpublished), the parties owned adjoining parcels. Fremling (formerly Morrison) had lived for decades in the house erected on her heavily wooded parcel. Swartz alleged long-time use of a two-track dirt trail that passes through Fremling’s land and leads directly to Swartz’s parcel. Swartz claimed he had established a prescriptive easement over the trail.

The trial court invoked the wild lands exception, and Swartz appealed, arguing the wild and unenclosed characterization was erroneous because Fremling had lived in the house on her land for decades. The Court of Appeals affirmed, stating, “Swartz cites no authority for the proposition that the construction of a house on a lot precludes a finding that the land is wild and unenclosed,” although the Court also cites no authority squarely opposing the proposition.

Because Fremling had testified she was aware of, and had no objection to, the neighbors’ occasional use of the trail for recreation, “which is consistent with the recognition that owners of wild lands permit others to use the land without hindrance,” the Court backed into the conclusion the two track was located on wild lands. Were the exception inapplicable, Fremling’s knowledge of the use, coupled with her failure to object, would most likely have worked against her.


The criteria for a “wild lands” designation vary greatly from state to state (and sometimes among cases within a state). Application of the exception has taken on greater urgency in the face of an increasing number of disputes about public beach and trail access. Despite the Court’s mention of the dearth of on-point authority, the Swartz decision is “unreported,” as is a 2010 case on which the Court relied in its reasoning. In our view, courts should be sensitive to rapidly developing areas of the law and create precedent, rather than merely “instructive” decisions. One of the three judges on the panel in Swartz concurred “in the result only,” but did not give his reasons for doing so.