Defendants in a multi-million-dollar trespass lawsuit maintained under questioning that the airspace they traversed while corner crossing to hunt on public land is shared with the public and is not the exclusive domain of the ranch owner who is suing them.
Four Missouri hunters targeted by Elk Mountain ranch owner Fred Eshelman told their stories in depositions filed April 12 in federal court in Casper. In dozens of pages, they answered questions posed by Eshelman’s attorney.
“I didn’t cross through any private airspace,” said hunter Bradly Cape, the owner of a Missouri fence-building company whose work requires frequent interaction with property lines and land ownership issues. “It’s a common shared airspace. I know I never crossed private airspace.”
Cape, Phillip Yeomans, John Slowensky and Zachary Smith described in their testimony how they corner crossed in Carbon County to hunt public land adjacent to Elk Mountain Ranch without setting foot on private land. Corner crossing involves stepping from one section of public land to another at the common corners with two sections of private property — all arranged in a checkerboard pattern of land ownership — without touching the private land.
“I understand that airspace to be common and shared. So I stayed within shared airspace.”
Phillip Yeomans
An attorney for Eshelman, a wealthy North Carolina pharmaceutical magnate, questioned the four earlier this year in Cheyenne regarding their 2020 and 2021 hunts on Elk Mountain.
Eshelman contends his company, Iron Bar Holdings, has property rights at Elk Mountain that extend above the ground and that the corner-crossing men trespassed even though they did not touch his land. He filed papers from real estate agents saying if corner crossing were allowed, agents would devalue his 22,045-acre ranch by between $7.7 and $9.4 million.
No legislation, lawsuit or criminal case has firmly established the legality of corner crossing. As a result, Eshelman, a hunter himself, can have near exclusive control over access to thousands of acres of public land enmeshed in his Carbon County ranch if corner crossers are kept at bay.
Across the West, some 8.3 million acres of public land are inaccessibly “corner-locked” if the public can’t reach them by corner crossing, so the federal civil suit has widespread implications.
The 1878 corner
Some of the Missourians discovered during a 2019 antelope hunt nearby that the Elk Mountain property surrounded thousands of acres of public land, according to an interview Cape and Yeomans gave to Steven Rinella on Rinella’s MeatEater hunting podcast broadcast June 20, 2022. They began thinking about returning for an elk.
After researching whether they could be charged for trespassing while corner crossing, Cape, Yeomans and Smith returned in 2020 to give it a shot. They figured they could cross corners to reach and hunt on some of the thousands of acres of public land on wildlife-rich Elk Mountain — state and federal property that would be inaccessible without corner crossing or the grace of Eshelman. The hunters never called the ranch for permission to hunt on public land, according to the depositions.
They camped initially on a section of public land administered by the Bureau of Land Management that is accessible by county road. From there, the Missourians easily found the first corner they wanted to cross — a few hundred yards from their camp.
“It’s got two big [no trespassing] signs sticking up there you can see,” Cape said while answering a question from Eshelman attorney Greg Weisz. “There is a U.S. Geological Survey marker there, T-posts, chain, wire tying the two T-post[s] together, a lock.”
The monument marked the point shared among the two public and two private parcels and indicated the layout of the property boundaries.
Surveyor L. M. Lampton and his crew set that corner on Aug. 27, 1878 as part of the federal Public Land Survey System. They reached what would become the corners of sections 13, 14, 23 and 24, Township 20 North, Range 82 West, by measuring from a known point a mile to the south.
At the corner the surveyors dug a foot-deep hole where they set a marked, granite cuboid about the size of two shoeboxes, according to Lampton’s field notes. A resurvey decades later replaced the cuboid with a monument made of a metal pipe capped with a disc marked with the numbers of the four sections and indicating which is located in what quadrant.
Armed with the information, the hunters were poised to step over the marker, from one piece of public land to another piece of public land, without ever setting foot on Eshelman’s private property. But there was an obstacle.
Enter the ladder
At the first common corner, a ranch worker had driven a T-post into each of the two kitty-corner Elk Mountain Ranch sections close to the monument. Each post had a no-trespassing sign.
“I can’t step between the signs because of the chain and the lock,” Cape said of his first crossing in 2020. “So I … plant my left foot on the public land, grab the T-post, swing my right foot around and hit the public land on the other side.”
As part of their defense, the hunters assert that the federal Unlawful Inclosures Act of 1885 bars private landowners from fencing off access to public lands. Eshelman asserts that his property rights include the airspace above his land and that anybody passing through it is trespassing.
Yeomans and Smith said in 2020 they crossed the corner in the same manner as Cape. Beyond that point, the men navigated using the onX mapping app on a cell phone which uses GPS to pinpoint the users’ location on a map overlaid with land ownership information. With that tool they approached and found subsequent common corners, according to court documents, before stepping over them.
By finding and relying on the monuments, instead of onX exclusively, the hunters avoided the potential problem of the GPS technology’s imprecision.
No other corner the hunters crossed had T-posts erected on the private parcels similar to the obstacle at the intersection where the hunters first crossed.
On their hunt in 2020, the men killed three elk — one five-point and two six-points. They field dressed and packed out their kills using the same navigation scheme, according to their depositions.
During that 2020 hunt, Elk Mountain Ranch property manager Steve Grende encountered the men and accused them of trespassing, the hunters said. “Mr. Grende claimed that, because these Defendants grabbed Plaintiff’s obstruction at the First Corner, they had trespassed on private land,” hunters stated in court papers.
Grabbing the ranch T-posts “was a contention brought up by [ranch property manager] Steve Grende in our first encounter with him,” Yeomans said in a deposition. The obstructing T-posts’ connection to private land made them legally radioactive.
The hunters decided they needed an alternative method if they wanted to return.
“So tell me about the ladder,” Weisz asked Cape during last month’s deposition in Cheyenne.
To cross the T-post-blocked corner in 2021, fence-maker Cape fashioned pieces of steel fence pipe into a step ladder. The hunters brought it to Wyoming, Cape said, “so we didn’t have to touch the T-post.”
Yeomans explained further. “The ladder was used to remove any doubt, any suspicion of any wrongdoing, to protect the landowner’s property, signs and T-post.”
The hunters didn’t take the ladder farther up the mountain, instead laying it down near the first corner “so it couldn’t be seen,” Cape said. “I didn’t want anybody to steal my ladder.”
The hunters claim Grende harassed them while they hunted on public land and his calls to law enforcement led Game and Fish to call the Missourians off the mountain. That cut their hunting excursion short, the Missourians said, before they filled all of their licenses in 2021. Neither Game and Fish nor the U.S. attorney for Wyoming has filed hunter harassment charges against anybody from Elk Mountain Ranch.
‘Ownership of space’
The hunters have referenced Wyoming law that states “[t]he ownership of the space above … is … vested in the several owners of the surface beneath.” That position produced dizzying exchanges regarding theories of property rights and airspace, including this one between attorney Weisz and Cape.
Weisz: Do you agree that you pass through the airspace above the surface of the Iron Bar private property?
Cape: No.
Weisz: You crossed through that space regardless of who owns that airspace?
Cape: Did I cross through airspace?
Weisz: Yes sir.
Cape: Yeah, I assume I’m in airspace.
Weisz: Do you agree with me that above the surface is airspace?
Cape: Yes.
Weisz: I’m not asking you who owns it or whether you had a right but you physically crossed through that airspace, right?
Cape: Through air.
And this exchange between Weisz and Yeomans:
Weisz: Did your body pass through the airspace above the surface of the Iron Bar private property?
Yeomans: I understand that airspace to be common and shared. So I stayed within shared airspace.
Weisz: Did any part of your body touch the airspace located above the private property?
Yeomans: I understand that my shoulders are wider than a brass cap [surveyor’s monument marking the common corner], but I did not exit public property or the shared corner.”
And this exchange between the attorney and Smith:
Weisz: Did you cross through the airspace located above the surface of Iron Bar private property?
Smith: I don’t think I did because I never left public air space.
Weisz: Is that your contention that the airspace above the Iron Bar property — that that airspace is public property?
Smith: No, sir.
Weisz: Is it possible to cross through this corner without crossing through the airspace located above the Iron Bar private property surface?
Smith: I believe to enter something, you must have to leave something, and I never left public airspace.
Cape described the difference between Eshelman’s airspace and that occupied by Cape’s own house in Missouri this way: “One’s construction, one’s not.”
Weisz and the hunters did, however, establish some common ground.
Weisz to Cape: You agree with me that the legal question of whether you had a right to [pass through airspace above Iron Bar property] is one of the things we’re going to answer in this case, right?
Cape: I agree to that, yes.
Weisz to Smith: A portion of your body had to physically cross through the airspace located above the Iron Bar deeded property. Do you agree with that?
Smith: I agree.
Weisz: Whether you had a right to do so is subject to dispute in this litigation.
Smith: Yes.
Weisz to Slowensky: The airspace physically located above the Iron Bar property, your body pass[ed] through that?
Slowensky: Yes.
Not looking for a fight
On Rinella’s podcast, the hunters said they weren’t looking for a precedent-setting confrontation, just a hunt. After they were ticketed in 2021, they sought the help of the Wyoming chapter of Backcountry Hunters and Anglers, which launched a GoFundMe campaign to ensure they could have their day in court.
“Backcountry Hunters and Anglers did not instigate this,” Buzz Hettick, chairman of the Wyoming chapter said at a forum in Laramie earlier this month. “I knew none of those hunters until they brought this case to us.”
As of Monday, the campaign had raised $116,964.
A Carbon County jury last year found the four not guilty of criminal trespass and trespassing to hunt in a separate case in state court. As Eshelman’s civil case advances in federal court, both sides have asked the judge to rule at least partly in their favor without a trial.
The hunters want the suit dismissed; Eshelman wants the judge to rule that the men trespassed and for a jury to decide only damages.
I’m a land owner. In Missouri, as it happens. I own hundreds, not thousands of acres. We are certainly concerned with true trespass. Damage to property and fences, poaching and the creation of physical hazards to us, wildlife and livestock are a real concern.
That said, this case is something else entirely. It’s clear this wealthy rancher and likely others just like him are using landlocked public property as though it is their own. Now that this is public knowledge their actions are inviting government intervention. In trying to defend their “right” to personal control over public land they encourage state government to impose passage easements and seize the necessary land under imminent domain. That action would ultimately be bad for all rural land owners who don’t want government seizures in our backyard, as it were.
Mark my words, this rancher would have been far better off to just let these corner crosses do their hunting. Public opinion is NOT on his side and the results of the stir he’s created will likely be the bell he can never unring.
IF it’s ‘federal’ lands, just invite the local BLM TOP DOG to go hunting with you.
Any flack from the landowner will get the government FORCING ACCESS at numerous points across his private lands.
It worked in Colorado 50 some odd years ago.
2,000 years ago in ancient Rome people were fighting in court about tree branches crossing over one property to another.
The 1878 granite cornerstone may have been big enough for people to step through. One could argue that this “cuboid” space is public property officially staked by the governement.
How close to ur house/yard can a drone come. How high is private air space in that situation. Do I people think it’s OK for a drone to touch ur window. Violating air space is violating air space no matter the circumstances. How have other people gone from public land to public land without tresspassing. What was different that these men cudnt. How was the rancher interfering with their hunting. Was this a usual place of crossing or did 4 men look for a place not usually used for crossing. I live in MO. We landowners just went thru 30 yrs of conservation saying landowner 6didnt own water in non navigable rivers. Although a congressional act vested ownership to landowner. Conservation said water was needed in order to open another venue for tourist. They said water belonged to public but use and control was given to private canoe rental businesses. We still had to pay taxes and clean up trash. Finally won that fight. So these people that think public shud have access to all private land sponsors a bill right to fish and hunt. Reveryone has right to hunt and fish. If passed as written then landowners wud have to allow everyone and anyone access to landowners property cuz right to fish and hunt. Our legislators agreed but added as long as they are not tresspassing. No tresspassing laws wud still apply. Johnny Morris owner of bass pro and lives in MO supports a group that advocates for all public sportsman shud have access to all private land. People on MO who have watch morris in action think it’s very suspicious that it’s 4 men from MO that went to Montana to challenge their no tresspassing laws. I promise u if someone wud follow the money in this deal it will lead back to MO. I’ve read upside. U have no idea the rest of the story. If u people are landowners u need to do what’s right to protect property rights. That’s my dog in this fight. If we had let this water grab stand u people out west wud have lost ur water rights. Congressional act. Equal footing act pertains equally to all 50 states. They break 1 state they break all states. Morris can’t see how or believe anyone can own part of river or have water rights. I pray ur elected officials find out the whole truth and rule for rancher. Else ull have people camping in ur front yard. Plz ck out the act of congress and research Johnny Morris. God bless u all. And God bless America
There was an earlier case in Sheridan County, WY when the shared airspace was provided by an ultralight (instead of the ladder). Commercial airlines fly over private land every day, and so do satellites. The landowners have the losing argument, and too much money.
the Missouri “four” hunters were found Not Guilty of Trespassing….why then after this verdict Eshelman and is sell-out good squad were not cited for Hunter Harassment? WHERE ARE YOU GAME & FISH? Write some dagnab tickets! (copy of Statute below). Wyofile readers, tell me Why the Landowner and Manager shouldn’t receive harrassment charges???———————————————————————————————————————————————————————————————————————-
Wyoming – Harassment Statutes
(a) No person shall with the intent to prevent or hinder the lawful taking of any wildlife: (i) Interfere with the lawful taking of or the process of lawfully taking any wildlife; (ii) Engage in any activity intended to threaten or otherwise affect the behavior of any wildlife. (b) A violation of subsection (a) of this section constitutes a low misdemeanor as punishable as provided in W.S. 23-6-202(a)(v). (c) Any person failing to obey an order of any peace officer to immediately desist from conduct in violation of subsection (a) of this section is guilty of a high misdemeanor punishable as provided in W.S. 23-6-202(a)(ii). (d) Any organization or association which counsels or solicits its members or others to violate subsection (a) of this section is guilty of a misdemeanor punishable by a fine of not more than ten thousand dollars ($10,000.00). Each subsequent violation of this subsection shall be punishable by a fine of not more than fifty thousand dollars ($50,000.00). (e) In addition to penalties imposed under this section, any person who has suffered injury by reason of the conduct of any person violating this section is entitled to recover damages in a civil action. Actual damages recoverable may include, but are not limited to expenditures for licenses, travel, outfitters and guides and special equipment and supplies to the extent the expenditures are rendered futile by the person’s conduct in violation of this section. If the trier of fact finds that the unlawful conduct was malicious, it may award punitive damage to the injured party. (f) Upon petition to the district court by any affected party and upon a showing that conduct in violation of this section is threatened or has occurred and under similar circumstances would likely reoccur, the court may enjoin conduct which would be in violation of this section. (g) This section shall: (i) Not apply to any land lessee, permittee or any employee thereof engaged in the performance of work-related activities; (ii) Not apply to any landowner or his agent engaged in any activity on his own private property. (h) As used in subsection (a) of this section, “process of lawfully taking” means travel, camping and other acts preparatory to taking wildlife if occurring on lands or water upon which the affected person may legally take the wildlife.
Citation: Wyo. Stat. Ann. § 23-3-405
These greedy ranchers have been getting away with locking people out of public lands and the courts turn a blind eye to it. It’s time to end this land grab.
Hunters, hikers, fishermen, pilots, model airplane enthusiasts, drone operators, and most landowners will benefit from a clear definition of public airspace. What we really need is a law requiring private landowners to grant access to public lands. Most countries have that. Are we really the land of the free?
I am a simple man that has no “higher education” in Law. What I would like to know is, how high does that property “airspace” extend? Is unlimited in height? If so, is every airplane that fly’s over in violation of this trespass as well as each person occupying a seat in said plane? What about those that can afford to hire a helicopter pilot to airlift people into these landlocked areas? Thus the question of “how high does that airspace extend”? I don’t want to be “that guy” but in today’s day and age, maybe I cannot actually “fly” like a bird or a plane, but if I jump, put my arms out and flap them until I fall to the ground, was I not a bird or a plane for a few short seconds? Does that give me the right to “identify” as bird or a plane? The Federal Gov’t has already allowed certain individuals or groups of individuals to “identify” as something they were not actually and factually born as being. Again, I don’t want to be “that smartass” to bring such a topic up…but if it is going to be good for one, should it not be good for all? I think the ranch owner itself has watched too many episodes of “Yellowstone” and has a belief that a TV series is true to life. This is a mess, and however it ends up, I applaud these men for not backing down! This is what is needed at times to clarify and possibly restructure laws set forth in the 1800’s.
If crossing low-altitude air space over private land has no limitations, would it be okay if a neighbor installed a zip line across another neighbor’s private driveway? Shouldn’t be a problem as long as those using the “shared air space” don’t touch the land underneath, right? Who gets to judge how much of one’s body and/or tools hanging over private property is acceptable?
Behind everyone of these out of state land barons is a local sellout thug who’ll do the ranches dirty work and henching for usually not much pay. The Eshelman ranch and it’s employees are no exception. Heck, up here in Cody, we even have a true foreigner who owns a bunch of land and has a bunch of thugs hired to patrol it for him. But, what the rich foreigner doesn’t know is that these same sellouts hunt the living crap out of his ranch (even guide for money) when he’s not around. Anyway, these sellouts remind me of a dirty small town cop, tough in the squad car yet sneakily creeps around the grocery store unwilling to look his victims straight in the eyes while not being protected by the blue curtain
I believe I’ll sue Eshelman for breathing from my “air space”. A statement as ridiculous as this law suit
It would seem that the hunters, Back Country, and the federal government have a real case against Eshelman for violating the Inclosures Act in blocking corner crossing. His attorneys seem to argue that the only airspace corner crossers can use is the straight line rising vertically from the corner at which the four parcels meet. As a line, defined by Euclidian geometry has length but no width or depth, it would be impossible for any living being to corner cross: At some point the passage from one public parcel to the next, a part of any person’s body would pass over the airspace of the private parcels. So by arguing that the Missouri hunters trespassed on his property by intruding on the airspace of his land, Eshelman is effectively blocking any access to public land enclosed by his property. This seems to me a clear violation of federal law.
Evidently Elk Mountain Ranch thinks the public lands they block access to belong to the ranch. Nowhere have I seen a sound reason for the supposed decrease in value if the public can access these lands, so are we left to assume why the realtor came to this conclusion? Eshelman is unlikely to be the only major land owner hoping the court adjudicates blocking corner crossing. If the courts rule in his favor, the federal government might be due a huge compensation as the public grazing fees are essentially subsidies to livestock growers. Deprivation of public use of public lands should cut both ways. Rich Republicans love getting freebies from the rest of us.
Paul Burke, I’ve read many of your comments regarding this situation. It’s obvious that you have not researched it properly and can only spew out uneducated statements. Do your homework, then get back to us.
Those signs placed along the corner markers are a clearly an obstruction. No different then someone placing a turnpike at one of the Yellowstone gates and when someone, trying to enter the park ‘touches’ the obstruction to get through, the adjacent landowner pops out of the weeds calling foul and trespass. Fred Eshelman, let’s make a deal – if you lose this frivolous lawsuit (which you probably will), leave Wyoming for good!
Fred Eshelman, it’s just too bad and nobodies fault but your own that you fell for an exaggerated, overzealous real estate brochure that described Elk Mountain Ranch as a property that had 100% control of federal (public) lands within it’s boundaries. It’s also your fault that you waaaaaaaay overpaid for this property. And too bad that the judge threw out that “appraisal” supposedly showing a major devaluation of Elk Mountain Ranch (penned by the same real estate agent that snowed, I mean sold you the ranch) if the public was able to access the landlocked federal lands. Guided prodded by a “sales’y” real estate agent, you, Mr. Eshelman, did not do your due diligence when purchasing the ranch. We all sometimes fall for sales tactics and end up with something not quite what we were expecting…and cut our losses and move on. So, man up, Mr. Eshelman. Oh, hey there real estate man James Rinehart (broker of ranch sale and author of that thrown out “devaluation” appraisal), are you reading this?
How can a rancher own airspace? Would that mean every time a United Airlines flight crosses his property it is trespassing? Seems crazy.
Also why doesn’t Wyoming Game and Fish Dept. buy some land ( ro do a federal state land swap) adjacent to Elk Mountain to allow public access for hunting and hiking?
The state or feds DO own the land that the hunters are on and are trying to access. The area in question is actually the air above the infinite sized border corner that the hunters step across..
The ranch owner’s threatening legal action to these out-of-state hunters is eerily similar to a SLAPP suit, a Strategic Lawsuit Against Public Participation. While a SLAPP suit is used most often to silence public criticism by citizens, SLAPP suits and the ranch owner’s lawsuit both involve public spaces. In this case, the public “space” is an actual, real surface.
There are millions of land-locked acres of ground belonging to the American public, that is, owned by Americans, and maintained by taxes paid by Americans, which are at stake in this dispute. If this lawsuit and the adjacent land owner prevails, Americans can kiss another one of our rights, being able to access what we own, goodbye.
I’m astonished that these four men have taken on the burden to protect American-owned lands on their shoulders. Shoulders which are, “wider than a surveyor’s cap,” as noted by one defendant. Wyoming citizens and others who cherish our public lands would do well to support their expenditures of time and money to stand up on all behalf for our rights.
This notion of private versus public airspace is a strange one. How does one differentiate between the private versus the public nitrogen, oxygen, and miscellaneous gas molecules that comprise air? Also, why should preventing the public from accessing public land add value to private land? This case will be an interesting legal contest in federal court.
The act of corner crossing from one parcel of public land to another, does not prevent Eshelman from his use and enjoyment of his private land. It prevents him from having sole use of public land.
who brings a ladder when they are hunting ?
since the ladder is the defense that the hunters are using did the
corner cross happen with the ladder anchored on public land or private land ?
have no dog in this fight but bringing a ladder while huntin seems suspect to me !
You say you don’t have a dog in the fight, but you’ve done nothing but disparage the hunters since this all started.
Your attempt to claim that you are impartial doesn’t pass the smell test.
Because they had been harassed by the ranch property manager on a previous hunt:
“On their hunt in 2020, the men killed three elk — one five-point and two six-points. They field dressed and packed out their kills using the same navigation scheme, according to their depositions.
During that 2020 hunt, Elk Mountain Ranch property manager Steve Grende encountered the men and accused them of trespassing, the hunters said. “Mr. Grende claimed that, because these Defendants grabbed Plaintiff’s obstruction at the First Corner, they had trespassed on private land,” hunters stated in court papers.
Grabbing the ranch T-posts “was a contention brought up by [ranch property manager] Steve Grende in our first encounter with him,” Yeomans said in a deposition. The obstructing T-posts’ connection to private land made them legally radioactive.
The hunters decided they needed an alternative method if they wanted to return.”
Paul Burke (Fred???) , you kid nobody here. If you “don’t have a dog in this fight” then keep out of it
Easy to do. If you had looked at the photo in the article, you can see that the legs of the ladder are placed on public land. Both sets of legs can be on public land while straddling the section corner.
Also did the private ranch owner have a permit from the BLM to construct the fence (padlocked chain from one post to another) across the public domain airspace?
Mr. Burke. Hundreds of hunters pack ladders in. Some are used to access tree stands. Etc. more so you clown these hunters made a sound plan to legally hunt on land they had drawn Elk Tag to. Here question for you Paul. If state of Wyoming feels these lands can’t be accessed to. Why do they take us hunters money to hunt on these “landlocked” areas. The State must feel they can be legally accessed by corner crossing. Now then the Game Warden/Sheriffs are not doing their legally bound duty by not enforcing the Wildlife/Hunter Harrassment that this and other Ranches do every year. So Mr. Burke your wrong in your opinion.