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Old 07-08-2009   #1
 
Durango, Colorado
Paddling Since: 1976
Join Date: Jun 2009
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legal defense for scouting #5

Colorado does have some intricate laws about property. "Prescriptive easements" are easememts that come about when someone openly uses another's property for so many years (with neither permission or prohibition from the actual landowner) that a right is established. Check Wikipedia's definition of prescriptive rights and adverse possession for more info. Seems to me boaters have been using the land on river left to scout Number 5 for at least 30 years. I think the period of continuous "open, public, notorious and hostile" use of another's property is 17 years in Colorado. Like the law or not, it is used regularly mostly by one land owner against another landowner- like when a fence line is off a perty line and assume to be the actual property line. I wonder if the public does not have a claim of a prescriptive right since they have been using this land for decades? Any CO lawyers got any input?
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Old 07-08-2009   #2
 
Cisco, Utah
Paddling Since: Dawn
Join Date: Sep 2007
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Not to defend or deny, but as devils advocate... "Boaters" as a group is a bit ambiguous. It would seem such a 'squaters rights' issue would be more pointed to individuals than a generic group. So following the logic it would seem that an individual who can document his 30 years of scouting on the left might fit this argument. It would also seem he would have figured his line out by now. The new boater wouldn't seem to fit into this logic as the individual has no precedence.

Personally I don't think this type of approach holds any water.
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Old 07-08-2009   #3
 
West By God, Wyoming
Paddling Since: 1999
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I'm not an attorney that is licensed in Colorado, but generally speaking a prescriptive easement is personal to the hostile user of the land. Boaters can't collectively get a prescriptive easement. However if you have a particular boater that has been using that scout on a regular basis for the past 17 years, then that boater may have an argument. Good luck proving it though.
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Old 07-12-2009   #4
 
Arvada (Denver), Colorado
Join Date: Jul 2005
Posts: 250
Portage/Scouting Easements

Quote:
Originally Posted by durangoyaker View Post
Colorado does have some intricate laws about property. "Prescriptive easements" are easememts that come about when someone openly uses another's property for so many years (with neither permission or prohibition from the actual landowner) that a right is established. Check Wikipedia's definition of prescriptive rights and adverse possession for more info. Seems to me boaters have been using the land on river left to scout Number 5 for at least 30 years. I think the period of continuous "open, public, notorious and hostile" use of another's property is 17 years in Colorado. Like the law or not, it is used regularly mostly by one land owner against another landowner- like when a fence line is off a perty line and assume to be the actual property line. I wonder if the public does not have a claim of a prescriptive right since they have been using this land for decades? Any CO lawyers got any input?
Along with looking at prescriptive easements, you may want to look at portage "easements by way of necessity" for Colorado (older link but still applicable, though). See both and other easements at:

http://www.masterslawfirm.com/Easement1.htm

http://www.masterslawfirm.com/Easement2.htm

and also look at

http://www.tpwd.state.tx.us/publicat...dportage.phtml

"Public Water Users" and/or "Public Water Owners" is a more descriptive term than "boaters", as it includes every public user/owner, such as wading fishermen and boaters. It also differentiates from "Private Land Owners" quite well.

Portage/Scouting easements are easements opposite those of Trespassing and contentious issues. Better than judicial proceedings, legislative clarifications of existing law or creations of new law concerning portage/scouting can help with your questions about 5. Cooperation is best of all options but only solves the individual situation. Portage by necessity, if a court situation arises, is probably an easier path than prescriptive easements, however, and what constitutes "obstruction" and/or "hazard" also comes into play between the private and public interests.

btw, "Adverse Possession" was going to be used as one of the defenses of the "Right to Float" Cannibal v Gateview case in 2001 down in Lake City, CO and was not precluded as a defense by the court. Boats had been using waterways for many years for commercial purposes. Cannibal just ran out of money and couldn't proceed.
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Old 07-13-2009   #5
 
Boulder, Colorado
Join Date: Oct 2003
Posts: 130
Just a quick comment... (and probably stating the obvious), please read one of the land owner's comments at the tail end of the "Problems scouting on #5 on the Ark" thread Problems scouting #5 on the Ark
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Old 07-13-2009   #6
 
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Little Village, Colorado
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Here's the answer to landowner issues...

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