By BEN NEARY
NMWF Conservation Director
A district court judge has denied a request from the New Mexico Wildlife Federation and a group of Sierra County residents to order private landowners to remove a locked gate blocking a road that the public has used for decades to access the Aldo Leopold Wilderness.
District Judge Shannon Murdock-Poff issued a written order on Jan. 4 denying a request from NMWF and the Percha Creek Association to order landowners Mark and Ruth Bennett to remove the gate they installed last year.
Lawyers for the NMWF and the association plan to appeal the judge’s order.
The Bennett’s installed a gate early last year on a parcel of land they own, blocking public access to Gila National Forest Road 40E.
The road extends westerly 2.9 miles from the end of Main Street in the town of Kingston to the entry of the Aldo Leopold Wilderness portion of the Gila National Forest. The road leads up the canyon that holds Percha Creek to a trailhead on the Ladrone Gulch Trail, which heads into the Black Range and the Aldo Leopold Wilderness.
The road has long been delineated on U.S. Forest Service maps as Forest Road 40E. A USFS sign at the base of the road still states, “Private Property. Please Stay on Roadway for Next 1 Mile. Forest Road 40E Open to Public.”
Lawyers for the NMWF and the association had argued that the public has established a prescriptive easement over private lands owned by the Bennetts and others and that the public has the right to continue to use the road. In order to establish a prescriptive easement, they said the public has to have used the road openly, without asking permission from any private landowners, for more than 10 years.
Murdock-Poff stated in her written order, “Through evidence provided at trial, from 1950-2023, the road had been used by the public to access the La Drone (sic) trail and forest land.”
However, Murdock-Poff concluded that the public’s use of the road had been with the permission of previous owners.
The judge noted that a Forest Service worker asked the Bennett’s for permission to enter their locked gate last year. “This indicates that the road is not a Forest Service Road thus not a public road,” she wrote.
Several members of the association testified at the December court hearing that they had used the road for decades before the Bennetts acquired the property in 2022 without ever asking permission.