A Guide For Massachusetts Landowners and Trail Groups
This text is taken from a Mass. D.E.M. brochure distributed by the Trails Program
"The good will and cooperation between private landowners and trail groups is a vital link in the development and continued existence of long distance trails. Although most trail groups attempt to take advantage of natural areas under public ownership, inevitably a trail of any substatial length will have to cross private land. In negotiating with landowners for permission, licenses or easements to cross private land, a number of questions and concerns commonly arise. The Massachusetts Department of Environmental Management (DEM) has prepared this brochure to address some of the frequently raised concerns, and to offer information to assist relations between trail users and landowners. This information is intended to be general in nature, and specific cases may require further legal counsel."
"If landowners allow access across their property will they become exposed to liability suits for injuries suffered on their property?" "Trail users can sue a landowner but liability is limited by law to circumstances of unlawful, wanton and reckless conduct. The standard definition for this 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." "Massachusetts General Laws (MGL) Chapter 21, Section 17C, which limits a landowner's vulnerability to suits by reducing the duty of care, reads as follows: 17C Public use of land for recreation purposes; landowner's liability limited; exception An owner of land who permitsthe public to use such land for recreation purposes without imposing a charge or fee therefor, or who leases his land for said purposes to the commonwealth or any political subdivision thereof shall not be liable to any member of the public who uses said land for the aforesaid purposes for injuries to person or property sustained by him while on said land in the absence of willful, wanton or reckless conduct by such owner, nor shall such permission be deemed to confer upon any person so using said land the status of an invitee or licensee to whom any duty would be owed by said owner. The liability of an owner who imposes a charge or fee for the use of his land by the public for recreation purposes shall not be limited by any provision of this section. (Emphasis added)" "Any landowner with a hazard such as an open pit or unsafe structure on his or her property should repair or remove it. Whether or not a trail exists on the property, an owner could be liable for injuries sustained by a legitamit user or even a trespasser, particularly if the injured party is a minor"
"If a landowner grants access through permission or license, will this lead to permanent access? Would continued use lead to loss of control or permanent easement through adverse possession? 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."
"How can a landowner control what happens on the trail that he or she has allowed across the property? The landowners may, and should, propose conditions of use to the trail organization. These conditions can be written into the license agreement or the easement. The owner or trail group might also want to erect signs reminding users that they are on private land and should refrain from certain proscribed activities. Examples of traditional restrictions prohibit lighting fires, camping, leaving trash, operating motorized vehicles, or access after sunset. A farmer might want to stipulate that no produce be picked, or that dogs must be leashed. These signs can be designed to meet the concerns of the landowner."
"What is a trail easement? In Massachusetts, the instrument for legal access for trails is called a "conservation easement" or more strictly a "conservation restriction." These are legally enforceable agreements between a landowner and a trail organization or local or state agency, under MGL Chapter 184, Section 31-33 by which the owner of open land promises to preserve its natural state and keep it substantially free of future development. For trail purposes, such an agreement should include language stipulating public access for trail use. Such a restriction constitutes an "interest in land" that runs with the land and is binding on future owners. The trail corridor remains the property of the owner and can be sold or disposed of but the trail easement is in perpituity. This agreement to preserve the land and allow trail access, can be donated or sold for its appraised value to a trail group, town, or public agency. Donations of land or conservation restrictions are tax deductible in most instances, with the amount of the deduction depending on the individual circumstances of the owner. Conservation restrictions are the best tool for permanent trail protection, short of outright acquisition of the property by a non-profit or government agency. They are permanent and appear on the title of the property. They also can provide a useful tool for landowners who are eager to preserve the natural quality of their open land."
"What other financial incentives are available for landowners who allow public trail access? Owners who sell or donate conservation restrictions may apply for abatements in property tax assesments to reflect the reduction of value of their property after foregoing the development rights. MGL Chapter 61B provides local property tax abatement for owners who open up their land for public recreation without charging a fee. This is administered through town tax assessors."
"What is a license? Unlike an easement, a "license" is a revocable agreement between an owner and a trail group that permits trail access. It is a useful tool, and superior to verbal and written permission in that it can be used to stipulate conditions of use and management agreements. Model formats are available from DEM's Trails Program."
"Who is responsible for maintaining the trail on private land? The trail organization or whoever accepted the easement or license is responsible for the care of the trail, in cooperation with the landowner. The trail organization should layout, cut, and blaze the trail to its standards. The landowner should always be consulted concerning major modifications, such as cutting large trees, opening walls or fences, or building bridges. Routine maintenance and clean-up are the responsibilities of the trail group. It is a courtesy to notify the landowner prior to embarking on any trail working party."
"Whom can the landowner contact if there is inappropriate use or other problems with the trail? A local trail representative from the trail maintainer group should be identified and should be available to owners to assist with problems. Trouble shooting and quick response to landowner concerns will help prevent loss of access."
"If landowners open their land for a foot trail how can they prevent unauthorized motorized use? If the license or easement stipulates foot travel only, this should appear on signs at the entrance to the property. There are pealaties 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, wheteher or not posted against trespass, with a motorized vehicle or powered device."
"If a trail group wishes to establish a trail on public land, does it need permission? Yes, permission is needed from the local park or forest supervisor prior to cutting a trail in a state park or forest. Trail use can sometimes conflict with other management goals such as forest or wildlife managment or water supply. The supervisor must be informed of the route of the trail and consulted on major changes involving cutting of trees or construction of bridges. Public land managers should be treated with the same courtesy as private landowners."
For more information contact: Trails Program Massachusetts Department of Environmental Management Division of Planning and Development 100 Cambridge Street Boston, Massachusetts 02022The above text was taken from a Massachusetts Department of Environmental Management Brochure that was an Appendix to a 1989 Worcester Polytechnical Institute student MidState Trail report.
