Chapter Nineteen
The next morning, Rick and I drove downriver along the steeply winding road to the Frenches’ place. When we arrived, the Frenches behaved as if nothing were amiss and warmly invited us in.
Doing his utmost to contain his consternation, Rick stood his ground, looked down at Thurlo, and got straight to the point.
“I was just wondering why you found it necessary to go to the commissioners to get something you already have.”
Thurlo mumbled an answer that was difficult for me to hear, but it sounded as if he was saying he appreciated that I was letting them drive through my property. Then he said, more audibly, that although he had other ways of accessing his property, he liked driving through the ranch.
“Only reason I spoke up at the meeting,” he declared, “is ’cause I wanted to make sure other folks could still come through. Hope there’s no hard feelings.”
No hard feelings? Was he serious??
He hadn’t denied that he said and did what the minutes reported. He and Dorothy continued to offer explanations and excuses that didn’t make any sense, nor did they answer Rick’s question. Finally, frustrated and bewildered, we left.
Erring on the side of generosity, I continued to allow the Frenches to drive through the ranch. Even after we read that they and their neighbors were persistent in asserting that I had no right to lock my gates, I allowed all of them to drive past our home until the predictable annual occurrence of snow closed the road for the winter. At that point I sent a letter to the Frenches giving them one last opportunity to confirm that I had a legal right to lock the gates to my property. When they declined to do so, I thought, Okay. That’s it.
First I notified the Frenches and their neighbors that they no longer had permission to drive through my property. Then Rick changed the combination. The next time we saw the Frenches was in federal court in Boise the following year.
I’m not sure how much time or thought Custer County’s attorney put into the document she wrote on behalf of the county unilaterally declaring my road public. I had never seen or heard about the declaration of public road until I read about it in the Messenger. No one from the county had ever notified Rick or me. They simply declared my private property public and considered it a done deal. It was on the basis of no notice and no hearing that my Boise attorney advised me to file suit in federal court charging Custer County and the Frenches with violating my constitutional rights.
At the trial the Frenches and other witnesses for the defense swore to tell the truth, the whole truth, and nothing but the truth, and then they proceeded to say things that left me incredulous. As I watched people take the stand, one after another, and make allegations about the history of the ranch that impugned my name and reputation, I thought, How can they say these things with a straight face? Rick and I had given them the combination in good faith, and the Frenches initially had responded with appreciation. How did we become their enemy? Why were they doing this??
I had suspicions that there were industrial interests not among the named parties. We were given to understand that the Frenches’ attorney was working for them pro bono. He also happened to represent a large mining company with an interest in access to the mountains above my ranch. And although I don’t recall this being disclosed to me before I bought the property, a Forest Service official had reportedly urged the commissioners to declare the road within the ranch public during my predecessors’ ownership.
Few people in rural Idaho had the financial resources to fight the government. I suspected that those seeking to take my property were counting on my not having the will to fight back, but I had both the will and the resources. Even so, I started out slipping backwards. In the federal case, the county was on trial to defend its purported violations of my constitutional rights, but the opposing lawyer and his witnesses treated me as if I were the one on trial. When the Frenches’ lawyer puffed himself up and said, “We don’t cotton to outsiders coming in from New York and blocking public access to a public road!” I didn’t cotton to being characterized as the outsider in question.
Pausing to gather indignation until it reached the bursting point, he expounded further, “Why, that road’s been public ever since the ohhhhhld stagecoach came through back in eighteen sixty-two!”
With the location and history of the ranch and the roads and trails around it a matter of public record, I believe that the Frenches’ lawyer either knew or should have known that the road within the ranch had not been public since 1939, and that I wasn’t blocking access to so much as one inch of public land. But his claims were duly reported and widely disseminated. Few people outside the courthouse heard the truth. I had already fired my original Boise lawyer. Now I watched helplessly as a second Boise lawyer let far too many opportunities go by without making what even I as a layman thought were obvious objections to the defense counsel’s tactics.
At last the defense rested. The judge ruled that he couldn’t deliver a decision until I could prove that I had been damaged, and I couldn’t prove that I had been damaged until I had proven that the road was mine to lose in the first place. The federal case was put on hold until such determinations could be made in the proper venue, which was state court. The “action to quiet title” that I would have to file would be decided in Challis, the very town from which the declaration of public road had emanated.
The misinformation repeated most often by the Frenches and others was that the gates had never been locked in all the years prior to my ownership of the ranch. No one disputed that the entire length of Robinson Bar Road used to be the only road, that it used to be public, or that Robinson’s Bar had been a stagecoach stop in the nineteenth century. And everyone agreed that after the highway had been constructed on the north side of the river in 1939, Custer County had legally abandoned the old road on the south side, which by law gave ownership of the road to the adjacent landowners. Outside the ranch, ownership transferred to the United States Forest Service; within the ranch, to the ranch owner. That happened in 1939. With public trails available outside both gates, my assertion of ownership of the private road within the ranch would not deny any member of the public access to the public land around the ranch.
The declaration purported to reclaim the road through a state law that held that a road, having been open to the public for five years and maintained at public expense for five years, could be declared public. My claim was that there was a constitutional defect in that law (and consequently in the declaration) because the law failed to provide for notice or a hearing.
Before the dispute, local lore was consistent with what the seller had told me, that previous owners had locked the gates at least once a year to affirm their private ownership. But we couldn’t prove it because no one would come forward to testify to that on the witness stand. With the federal trial on hold pending a state court ruling, it seemed like a good time to look for another lawyer. It was a good thing Steve Millemann agreed to represent us when he did. Custer County was about to escalate the dispute.