Re: Brain Trauma Injury

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For your information this was a trail that had been used for years.
THe farmer had given permission for snowmobilers to ride there. It
had been used for years by these snowmobilers. If he would have said
that he didn't want them to ride there , they would not have. If he
didn't want them to ride, he should have posted signs up. Well
someone is going to get in trouble out of this. My sister n laws
insurance won't pay for rehab and my sister n law can't afford to do
it either. No one wants to be sued, but when they do stupid crap,
someone has to pay the price. I think it was wrong of this farmer to
do what he did. He must realize this was a serious, even deadly game
he played.

Rita Scott

On 12/29/05, Order in the Court wrote:
> Hello Everyone,
>
> I must say that this subject has stirred a lot of emotion and "back
> woods lawyers" but I must put a little thought in here too.
>
> To an untrained eye and/or a brand new lawyer (or one that is
> pretending to be one...Mamadoc?) this would seem to be an open and
> shut case. The people on the snowmobile think that they have the
> right of way and right to use a trail that they have made in a corn
> field because they think "hey, we can go here because farmer Joe sure
> is not using it now".
>
> Well, Farmer Joe is thinking too...he is thinking that those damn
> people on the snowmobiles are hurting the soil by constantly going
> over the same place every year. The exhaust and the fuel spilling
> from the snowmobiles is now affecting his crop the up-coming year
> (have you ever gone by a corn field and wondered why some of the corn
> is either smaller or non-existent in some areas? Well, that would
not
> be from lack of rain...that would be caused by snowmobiles thinking
> they are not doing any harm). The farmer now is thinking that he has
> to protect his crop because next year his profits from the sale of
> that corn are going to be drastically reduced if he does nothing, so
> he puts up his no-trespassing signs...but tthe trespassers come the
> next year too...so he goes further (after asking the town board) and
> puts up either apple bins or fence posts or wires to protect his
> investment. And then comes the trespassers again, usually after dark
> or in the afternoon...and always with their spotters with the
> radios...I guess they are the ones that are looking out for the
> weather patterns...but this time they are in for a shock when the
> first one on the path crashes into the barrier that the farmer has
set
> up to stop this invasion of HIS property.
>
> In thiss case, the invader sued and cried that the farmer blocked
they
> right of way and that since they have been using the path for a few
> years now...even if there were signs up to stop them...they have the
> right to be there. He argued that the farmer should be liable for
> medical expenses, damage to the snowmoblie and damages in the amount
> of $2 million for pain and suffering. The Farmer countered that his
> rights were being violated because of the trespassing and that his
> right to commerce (profits from goods of sale) was being affected by
> these invaders. He countered with a $5 million loss of commerce
> claim, $5 million emotional harm claim, and a $3 million claim
against
> the county police for not protecting his fields when they were
called.
>
> As expected...the lawyer for the invader dropped his case and the
> trail is now not being used...and the corn was just fine this year.
>
> Order in the Court
>
>
>
> On 12/22/05, mamadoc wrote:
>> Well, Mikey, I am sure you know more than I do about what could not
>> possibly be a crime or a tort in every jurisdiction in the US.
>>
>> However, your arrogant tone inspired me to start my Bar Prep early,
>> so let's make believe this was a Bar Exam question.
>>
>> This Board sends long emails to the administrator to review.
>> Therefore, my response to you will be in multiple segments.
>>
>> 1. Adverse Possession or Prescriptive Easement?
>>
>> Here, the facts state that this was "a trail that has been used
>> for years."
>>
>> All States recognize advers possession, though with different
>> statutory periods. The elements for obtaining title by adverse
>> possession are that the Adverse Possessor's [AP's] possession must
>> be "open, notorious and visible" (element met here), the possession
>> must be "hostile," i.e., without the owner�s consent (element met
>> here), must be continuous (where ability to use in the manner AP is
>> using it, seasonal continuous use satisfies this element); and must
>> be for at least the length of the statutory period (element met
>> depending on how many years AP used the trail, and how many years
>> in the jurisdiction's statutory period). Note also that "tacking"
>> permits adding the periods of use of one AP who follows another AP,
>> to get the continuous use satisfied, so that if P only used the
>> trail this year, but another AP used it last year, etc., the
>> element is satisfied.
>>
>> Therefore, it is conceivable that P, and not the farmer, has legal
>> title to the trail, in which case it would be Farmer, and not P,
>> who is trespassing.
>>
>> Even if adverse possession cannot be established, then P may have
>> gained an easement by prescription (EBP). The elements for EBP are
>> similar to those of adverse possession, and depending on the
>> statutory period in the jurisdiction, may well have been met. In
>> my jurisdiction, the statutory period is only seven (7) years, and
>> under the stipulated facts, this condition may well have been met.
>>
>> Assuming that a prescriptive easement (or adverse possession) can
>> be established, and even if no injury occurred, and even if Farmer
>> did not intend his acts to cause serious bodily injury to P, or
>> reasonably know that his acts would cause serious bodily injury to
>> P, farmer was not legally entitled to put the boxes across the
>> trail.
>>
>> Mikey, is your understanding of adverse possession and prescriptive
>> easements different from mine and, if so, how?
>>
>> To be continued ...