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Can You Put A Fence Around A Patented Claim?


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I've been considering the idea of buying a patented claim, but I'm curious what property rights you have with such a claim: is is essentially indistinguishable from private property at that point? Am I allowed to put a fence around the claim and post 'no trespassing' signs? What about obtaining permits to build structures - is it done through the city/county just like with normal property?

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Ok so this may or may not be a problem for your claim.  Many claims patented or not will have a road running through them and people and other property owners may have been using that road for a very long time.  This creates a prescriptive easement meaning that people have the right of passage through the land.  Fencing it is usually not a problem but locking that fence would be.  For the most part a fence and a small sign asking people to close the fence behind them would be enough to discourage 95% of people from passing through BUT restricting passage would be asking for a lawsuit.  
 

This is a complex issue that you should speak with a lawyer about.  If there is an easement through the property this does not give people the right to trespass off the easement but trying to shut down the right of way isn’t cool either.  Using good judgment here and signs reminding people they are entering private property will not only protect yourself from arguments but also discourage most people from entering in the first place.

 

For buildings and such the process is exactly like any other piece of property.

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1 hour ago, Clay Diggins said:

Just as a side note the Supreme Court in Iron Silver Mining Co. v. Campbell, 135 U.S. 286 (1890) has ruled that there is no such thing in law as a "patented mining claim". The land ceases to be a mining claim when the patent is granted.

Very interesting, I'm going to give that a read tonight  - thanks for the info.

 

40 minutes ago, zortan said:

This is a complex issue that you should speak with a lawyer about.  If there is an easement through the property this does not give people the right to trespass off the easement but trying to shut down the right of way isn’t cool either.  Using good judgment here and signs reminding people they are entering private property will not only protect yourself from arguments but also discourage most people from entering in the first place.

 

Good point - the properties I've looked at do have easements and I'd just leave those roads as they currently are. If I were to put up fence it would probably just be around the structures to keep people from wandering in. The idea of putting in a gate and leaving it unlocked does sound like a good solution.

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12 hours ago, zortan said:

Ok so this may or may not be a problem for your claim.  Many claims patented or not will have a road running through them and people and other property owners may have been using that road for a very long time.  This creates a prescriptive easement meaning that people have the right of passage through the land.  Fencing it is usually not a problem but locking that fence would be.  For the most part a fence and a small sign asking people to close the fence behind them would be enough to discourage 95% of people from passing through BUT restricting passage would be asking for a lawsuit.  
 

This is a complex issue that you should speak with a lawyer about.  If there is an easement through the property this does not give people the right to trespass off the easement but trying to shut down the right of way isn’t cool either.  Using good judgment here and signs reminding people they are entering private property will not only protect yourself from arguments but also discourage most people from entering in the first place.

 

For buildings and such the process is exactly like any other piece of property.

Prescriptive easement laws vary, I was managing a ranch and there were sheep herders who thought they could still drive through it after 100 years of doing so and cut our fences.  The sheriff came and it ended up with full prosecution for trespassing. It was a baaad situation.

Clay, Chuckwalla has good info, but definitely check county and state laws first.

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When it comes to easements you should check and make sure they are or are not RS2477 Right of Ways.... 

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Sheep herders  "....baaad situation" 🤣

 

RS2477 roads/prescriptive rights... depends on your state's laws (these can change overnight (I know having effected a couple changes in Idaho myself, and only recently having 2 passed against me and my work), the govt's position/backing, and how deep is the pocketbook and how large the legal firm.

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I thought congress and Only Congress can change the status of these right of way's. And I have fought for use of these trails and Won, which of course helped me with access to claims ( mine & claims up & dwn Stream of mine ) and owner's of claims in my area. I Didn't Give Up and Go Away which they would have preferred......

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  • 4 weeks later...

Congress only typically gets involved in the bona fide rights of the patents - not the the ROWs. US Congress issues the patents signed by the president.  The road cases then become a component of the localized jurisdictions within each state and many end up in the state supreme courts regarding interpretation, therefore the FS lately has been stepping back ignoring it (at least since the 93 election).

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