Property rights 101 for the Cottonwood Heights city council
Sep 07, 2018 01:01PM ● Published by Jana Klopsch
Landowners have to block public use if they want to protect their land from becoming a public thoroughfare. (Cassie Goff/City Journals)
By Cassie Goff | email@example.com
Lead Attorney in the Office of the Property Rights Ombudsman Brent Bateman discussed property rights with the Cottonwood Heights City Council during a regularly scheduled city council meeting.
“My job is to help people who have disputes with the government over their land,” said Bateman.
He came to the meeting ready to answer any and all questions the mayor and council members had about land-use laws. This included any legal issues with land use, roads, trails, eminent domain and any other questions about land use.
“The constitution protects the residents of Cottonwood Heights from you,” Bateman told the city council to begin. “My unifying theory is: the basic right that people have with their property is that they can do whatever they want with their land. I get to do anything I want on my land, that’s my right.”
However, chaos would ensue. “We tolerate laws that allow government to control what people can do on their land. The council has that power to tell people what they can and cannot do on their land.”
In order to do so, however, the governing body has to create ordinances. The Cottonwood Heights Code of Ordinances provides the formal exception to Bateman’s overriding unifying theory.
Mayor Mike Peterson asked Bateman about the balance between land use for the public and private landowners.
Bateman answered by describing a specific Utah statute that is referred to as the prescription road statute. “A prescriptive easement arises when someone crosses your land for about 20 years. You didn’t give them permission to cross your land, so they’ve been trespassing.”
After 20 years of consistent trespassing, the hooligan(s) gains a prescriptive easement which means they gain a right to cross that land.
“It arises no matter who owns the land, since it is connected to the land,” Bateman explained. If that land is sold to a new owner, the public still has a right to cross that land, even under the new ownership.
The same easement applies to public roads, but instead of 20 years, it only takes 10 years of consistent trespassing.
“Ten years pass with the public using a thoroughfare without the landowner saying anything, and bam, it becomes public use,” Bateman said.
However, landowners can protect themselves from losing their land under a prescriptive easement. If the landowner realizes that some part of their land is being used by the public as a thoroughfare, they can interrupt the use with intent to block. They can do this a few different ways. One of the easiest ways is to put up a fence and man the gate until someone comes by. “They have to prove that they stopped somebody,” said Bateman.
If that landowner is blocking the thoroughfare and the police ask him or her to stop the blocking, then the landowner has not been considered interrupting the use with intent to block.
Bateman explained how there is a debate right now at the state level around if this type of easement rule applies to trails.
If the public has been using a trail for 10 years, it has become a public right of way. It doesn’t even have to be a recent 10-year period; it just has to be any 10-year period. Many people have been showing public use through satellite photos and witnesses.
In these cases, the defense lies on the landowners. “Proving the negative is impossible,” Bateman said, illustrating the debate.
After discussing public use on private land, Peterson asked a question he has frequently heard from many Cottonwood Heights residents: “Why aren’t residents required to take care of their lawns?”
Bateman laughed as he referred back to his unifying theory. “People can have a mess. They can do anything they want on with their land.”
Realistically, the city could create a nuisance ordinance. However, that would become an enforcement problem for the city because “zoning power comes from the police power,” Bateman explained.
Eventually, the discussion led to questions about trees on property lines. “If a property owner plants a tree on the property line, the tree is owned equally by both sides,” Bateman said.
If that tree has branches and/or apples, the apples and branches are owned equally by both property owners. “One property owner cannot pick those apples, cannot cut a branch, without the other property owner’s permission.”
“Tree law is difficult,” Bateman said as he closed the conversation.
For more information on land-use law, visit Bateman’s educational website at luau.utah.gov/author/brentbateman.