Court upholds public access to waterways

In a Jan. 16 ruling, the Montana Supreme Court upheld Montana’s 1985 Stream Access Law, which a landowner in Madison County claimed was an “unconstitutional taking of his vested property rights.”

The 5-2 decision favored the group Public Lands Access Association Inc. in its legal dispute with James Cox Kennedy, who owns about 10 miles along the Ruby River.

The group said Kennedy built fences along county roads and bridges next to his land that prevented the public from using rights of way to reach the river.

Kennedy claimed he could keep the public out of a portion of the river. He argued that the stream access law allowing access to streams within the high-water mark and a 2009 law allowing access from bridges were unconstitutional.

Kennedy, who is chairman of the Atlanta-based Cox Enterprises media company, said that because he owns that portion of the riverbed, he has the right to exclude people from wading or floating on the water above.

The high court disagreed with Kennedy. Landowners may not stand in the way of the public’s right to access state waters, Justice Mike Wheat wrote in the majority opinion, and some contact with the banks and beds of rivers is necessary for the public to recreate in the water.

“In Montana, waters within the state are State property held in trust for the people,” Wheat wrote. “To assert he may control use of the water overlying the section of riverbed he owns is misplaced.”

That portion of the ruling upheld a lower judge’s findings. However, the justices also reversed District Judge Loren Tucker’s ruling that the public can’t travel from Seyler Lane to the high-water mark of the Ruby River.

Tucker’s ruling established two types of easements — one between the fences that Kennedy had erected that the public could travel through, and a wider “limited easement” exclusively for county maintenance and repairs, but which the public could not use to access the river.

The Supreme Court ruled that both the public road and the secondary easement for maintenance should be included in the public right of way, and they sent the case back to Tucker’s court to determine the width of the right of way, with instructions that recreational use may be a factor in the determination.

The justices also ruled the public can use a public road acquired through prescription — by custom or long use — for purposes other than what the road was used for when it was acquired. The uses of a public prescriptive roadway can change over time, the court ruled, and those other uses can be allowed.

“Foot travel over a roadway is, and has always been, a foreseeable use of the road surface as well as any shoulders, embankments and abutments supporting the roadway,” Wheat wrote. “Separate from the question of width, use of the road for access to the Ruby River is a reasonably foreseeable use of a public road right of way that crosses a river.”