Originally Posted by shredder-scott
How typical....what the land owner did was criminal. ...the sheriff is a wimp.....but that land owner is still vulnerable to a civil suit for injuries he caused due to his reckless behavior. ...it my experience that liability sharks are not as timid and wimpy as cops and their DA pals
Exactly! This sounds like a great negligence/premises liability case. It sounds strange that there appeared to be a number of groups that went through unobstructed. Did the river rise? Was the cable just installed?
I would be surprised if the Dolores is not classified as a navigable waterway which would totally preclude anything like the cable strung that low.
It also seems that there is likely a great case for a prescriptive easement. I am guessing this part of the Dolores has been navigated by rafts, kayaks, canoes, etc. for decades.
The Colorado Supreme Court found two forms of prescriptive easements holding that the easement can be established when the prescriptive use is: 1)open or notorious, 2) continued without effective interruption for eighteen years, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant.
Using an easement for more than eighteen years entitles the claimant to a
presumption that his use was "adverse."
To be "open and notorious"—the use of the easement must be sufficiently obvious to the owner of the servient estate, although actual knowledge by the servient owner is unnecessary. The claimant's use does not have to be continuous, but must be as frequently as he desires. Intermittent use on a long term basis is sufficient to establish a prescriptive easement.
In Oregon, prescriptive easements for public benefit, are not usually created until a situation arises where it is feasible to fund such an endeavor. A lawsuit establishing a prescriptive easement of this type would be expensive. It appears that this near tragedy provides just such circumstances.