We’ve herd that the Town plans a trail map which will include not only publicly owned trails and public easement trails but also private trails. There are those among us who think that some of these trails may have developed into prescriptive easements and some will become subject to prescriptive easements in the future by public use. We fear there are a number of unintended COWnsequences that may come from including private permissive easements on a map.
Our attorney friends say that to establish a prescriptive easement, four elements must be established by clear and convincing evidence: (1) open, notorious, and uninterrupted use; (2) hostile to the true owner; (3) under the claim of right; (4) for the statutory period of five years. Whether the elements of prescription are established is a question of fact for the court to decide. However, there are steps that a property owner can take to make sure that the use is clearly permissive and that people who have voluntarily opened their trails to the public or to segments of the public will be well advised to take steps to avoid any argument that their voluntary access will morph into a prescriptive easement. We are afraid that for some, espically if their trails are published on a map, the easiest way to accomplish this is to permanently close the trail to public use. We don’t want to see that happen.
Some voluntary easements are intended to be available only to members of the Woodside riding club. The owners may feel overburdened if the general public begins to use them. They may close them down. We don’t want to see that happen.
Once publicized, bicyclists and hikers may start use these trails. Who will police this and stop them? This too may encourage voluntary trails to be closed. We don’t want to see that happen.
We COWs love the trails which are one of the things that make our Town so special. We do not want to see a well intentioned but misguided project, discourage property owners from voluntarily keeping trails open.