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Public Trails and Private Lands
Q & A for Massachusetts Landowners and Trail Groups on Conservation and Trail Easements, Licenses, and Recreational Liability
Adapted from Creating Greenways: A Citizens Guide, May 2007
Although most trails try to take advantage of the natural, cultural, and scenic resources on public lands, inevitably, trails of any length will encounter private land. Historically, many trails crossed private lands, often on farm and forest roads, usually through informal arrangements among neighbors.
By necessity, as both our physical and legal landscape changes, arrangements for trails on private lands are becoming more formal, and many of the following questions and concerns commonly arise. Below are some general questions and answers that will hopefully assist both landowners and trail groups as you blaze the way toward the future of Massachusetts trails.
In What Ways can a Landowner Grant Permission for Trail Use on his or her Land?
Permission for trail use on private land can range from an informal agreement (sometimes called a "handshake agreement"), to formal written permission, to a license agreement, to a perpetual trail easement.
What is a Trail License?
A license is a revocable written agreement between an owner and trail group that permits trail access. It is not permanent or binding on future landowners. A license can be a useful tool, superior to verbal and written permission, in that it can stipulate conditions of use and management agreements.
What is a Trail Easement?
A trail easement is a perpetual legal agreement that allows others to use someone's land in the manner provided for within the easement. An easement can be very broad, granting access to the easement holder and the public, or it can restrict what kind of access, when and under what conditions access can be used. For instance, the easement can be for public access to an entire property, or it could be restricted to a certain users on a trail of a certain width. An easement can be for hiking only, or lake access, or bicycling, or hunting &endash; whatever uses the parties agree to, limited or expanded to the extent they decide.
What is a Conservation Restriction?
A restriction (as opposed to an easement) allows someone who does not own the land to prevent the owner from using the land in a way they would otherwise have a right to. A Conservation Restriction (CR) is a particular kind of restriction that complies with Massachusetts General Law c. 184 sec. 31-33. A CR that is intended to be perpetual must be signed by the Secretary of the Executive Office of Energy and Environmental Affairs. A CR is concerned with preserving the land in its natural state, and protecting its wildlife habitat, scenic views, forests and meadows, water quality, greenway connections, and other similar natural features. For an examples of CRs see "Conservation Restriction Handbook" from Massachusetts Office of Energy and Environmental Affairs (2008 edition).
There can be extraordinary tax benefits for the donation or bargain sale of a perpetual CR. Care must be taken to follow the rules for the deductions, which are subject to change, and one should seek professional advice if the intention is to obtain the tax advantages.
A trail easement may be included within a Conservation Restriction by including easement language such as:
"The Grantor grants to the Grantee and to the general public an easement to pass and repass upon said parcel on foot for the purposes of fishing, hiking, or nature study and the Grantor also grants to the Grantee an easement for the purposes of clearing, marking and maintaining the trails."
Conservation restrictions with trail easements are the best tool for private trail protection short of outright land acquisition. They are perpetual and appear on the title of the property. They can also provide a useful tool for landowners who want to preserve the natural qualities of their land.
If a Landowner Grants Trail Access through Permission or a License, Could this Lead to a Permanent Easement through Adverse Possession?
No. Continuous use of private property under permission or license from the property owner does not ripen into an easement (see MGL Chapter 187, Section 2). If permission is given for trail use, then that use is not adverse to the rights of the owner and cannot lead to claims of adverse possession.
If a Landowner Allows Access across their Property, Will They Become Exposed to Liability for Injuries Suffered on their Property?
MGL Chapter 21, Section 17C limits a landowner's vulnerability to law suits. While anyone, including a trail user, could sue a landowner, the owner's liability is limited by law to circumstances of unlawful, wanton, and reckless conduct. In part, the law reads:
Any person having an interest in land . . . who lawfully permits the public to use such land for recreation, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a fee . . . shall not be liable for personal injuries or property damage sustained by such members of the public, including without limitation a minor, while on said land in the absence of willful, wanton, or reckless conduct by such person.
Willful conduct is an intentional act or failure to act with knowledge (or knowledge of facts that would lead a reasonable person to know) that such conduct not only creates unreasonable risk of bodily harm to another, but also involves a high degree of probability that substantial harm will result. Any landowner with a hazard such as an open pit or unsafe structure should repair or remove it, whether or not a trail exists on their property and whether or not they allow public access.
Do Lands under MGL Chapter 61B have to Allow Public Access for Recreation?
No. Owners of land in Chapter 61B may open their lands for public recreational use, but do not have to.
Who is Responsible for Maintaining a Trail on Private Land?
Whoever accepted the easement or license is responsible for the care of the trail, in cooperation with the landowner. The trail organization should lay out, cut, blaze, and maintain the trail to specified standards. The landowner should always be consulted concerning major modifications, such as cutting large trees, opening stone walls, or building bridges. Routine maintenance is the responsibility of the trail group. It is a courtesy to notify the landowner prior to embarking on any trail work.
If a Landowner Opens their Land for a Foot Trail, How can He/She Prevent Unauthorized Motorized Use?
If the landowner stipulates foot travel, this should be included on signs at the entrance to the property, and alternative access points should be blocked. There are penalties for operating motorized vehicles on private land, and landowners and trail groups can work together by informing local police of violations. MGL Chapter 266, Section 121A makes it an offense punishable by a fine of $250 to enter onto private land with a motorized vehicle whether or not the land is posted against trespass.
Please remember the above information is intended to be general in nature, and specific cases may require further legal counsel.
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Updated January 12, 2010