Introduction

Private property rights broadly include the rights of people to acquire, use, and dispose of property freely. They are guaranteed in both the Michigan and United States constitutions and are also protected by state law, subject to appropriate restrictions. Respecting private property rights and mitigating liability concerns should always be a priority among the issues being considered when developing or expanding trails. Landowner-related issues can derail the potential for a trail and cause significant disharmony in the community. It is not unusual for new trail supporters to face significant opposition when building trails that either cross private property or are located near private property. It is imperative that trail managers and trail advocates anticipate these issues and clearly communicate draft plans and proposals early so concerns can be adequately addressed.

Landowner Liability and Recreational Use

Generally, a landowner or operator of land is not liable for injuries caused to those recreating on their land as long as property boundaries are adequately posted and they have maintained certain standards or duty of care to protect visitors from injuries. Although the “standard of care” can vary based on the conditions and use of the land, landowners must refrain from acts that constitute gross negligence and willful and wanton misconduct. In addition, if compensation is paid by the user (e.g., an access fee), then a higher standard of care may be required of the landowner and operator.

Basic Questions Related to Recreational Use

There are four basic questions that landowners should ask themselves and others regarding the potential for their land to be used in a recreational capacity:

1. What are my rights and how do I exercise them to control the recreational use of my property?
2. What is the extent of my liability exposure to recreational users and how can I protect myself against liability suits?
3. Will the value of my property that is located near trails be impacted in any way?
4. What concerns should I have for increased crime and vandalism and trespass on my property if it is located nearby or on a recreational trail?

Options for Landowners

There are several options available for landowners to take when contemplating the possibility of a trail being sited in a corridor adjacent to or on their property.

• They may utilize a barrier to prohibit access by others.

• They may agree to allow access for users and organizations to access private property through a guided easement.
• In addition to allowing access through an easement, they may also agree to act as a land manager in actively managing and controlling the use of the land for a trail.
• They may choose to sell or donate their land for use as a trail.

Key Statutes Addressing Private Property Rights and Liability Concerns

The Michigan legislature has provided statutory guidance regarding how private property rights are impacted by trail use. The Michigan Trailways Act (MTA)^[1] and the Recreational Trespass Act (RTA)^[2] are both cornerstones of statutory trail law in Michigan. Both acts provide guidance and tools for landowners considering trail development, either on or nearby their property.

Michigan Trailways Act

The Michigan Trailways Act was one of the most important legislative steps in helping establish legislative concern for protecting private property rights. During the development of the MTA in the 1990s, one of the key issues that the legislature contemplated was increasing concerns of property owners related to the development of trails near their land. The early days of trail building in Michigan included significant opposition from nearby property owners because of concerns of trespass and vandalism.

MTA and Farming-Related Issues

Key provisions of the MTA allow for the closure of a trail to provide opportunities for farming operations (e.g., pesticide application and other appropriate farming-related activities). For example, in agricultural areas, a trail may be temporarily closed by the organization operating the trail to allow for pesticide application on land adjoining the trail. The MTA also includes key provisions that allow for the promotion of farming activities and that reinforce the importance of signage and education to alert trail users to farming other and adjacent private property activities.

Recreational Trespass and Recreational Use Acts

The RTA was passed by the Michigan legislature to address issues with trespass on private land related to a host of recreational activities like hunting, fishing, and trail use. The Recreational Trespass Act provides significant protections for landowners to guard against unwanted intrusions onto private land.

Importantly, a companion statute, the Recreational Use Act (also referred to as the Landowner Liability Act)^[3], was also passed to provide protections for landowners who want to allow access to their property, with specific exemptions from liability if they follow an appropriate standard of care. It is important to note that this liability protection may not protect landowners if either gross negligence or willful or wanton misconduct occurs.

Working with Landowners

Given the aforementioned landowner options and guidance provided under the law, how should trail managers proceed in a way that both promotes trail use and addresses concerns with private property rights, particularly in communities where there is already opposition to either a new trail or the expansion of an existing trail? There are several critical steps that trail planners and managers should take in a planned and coordinated manner to work with property owners who may have concerns or may have even actively opposed a trail. Some of these options include (but are not limited to):

• Facilitate listening sessions with nearby landowners and incorporate their feedback. Acknowledge their concerns and try to create partnerships.
• Work with key stakeholders who support the trail to develop a larger core of supporters in the area.
• As early as possible, let landowners know of plans and be sensitive to their concerns. Offer them multiple opportunities to provide input.
• When designing the proposed trail, find ways to highlight local landowners and their role in the community (e.g., through history and marketing campaigns). This is a great opportunity to promote the historical and cultural background of the area and include those longtime property owners who are deeply connected to the land in the process.
• Recruit a few longtime landowners to serve on a volunteer organization that is set up to support the trail. Their influence in the community can be beneficial to the group.
• Consider setting up a segment of trail as a pilot project to demonstrate how the trail will benefit area landowners.
• Take your time and always show respect and support for any adjacent landowner concerns.

Once a trail has been developed, issues with adjacent landowners may still continue. Landowners and trail managers have ongoing responsibilities to minimize risk and improve trail experiences, which include ensuring that adjacent landowners and their property is being used as agreed upon. The fundamental success of any trail is, in large part, hinged on the development and nurturing of relationships of trust and remaining sensitive to any emerging land-based concerns.

Risk Reduction Strategies for Trail Managers

Risk reduction strategies protect trail users from unnecessary risk and protect trail managers and landowners from liability for damages. There are three key strategies that trail managers can use to minimize risk and reduce liability: trail design and maintenance, establishment of professional signage and education programs, and maintenance of liability insurance policies. Employing these strategies can avoid conflict with adjacent property owners regarding any injuries that might occur on the trail.

Design and Maintenance

The design and maintenance of trails for safety is of the utmost importance. During the early phases of trail design and development, trail managers should avoid dangerous locations and conditions when selecting trail locations. Any trail facilities and infrastructure should be constructed in accordance with recognized standards and best practices. Trail planners should also develop a list of permitted trail uses and the risks associated with each and design and design and construct the trail to minimize those risks.

Once the trail has been opened for use, a thorough maintenance and inspection plan should be followed which includes conducting regular maintenance inspections and documenting the results of the inspections and any actions taken to correct those issues.

Signage and Education

Designing a thorough signage and education program is a fundamental element of any good trail plan. Proper signing of a trail provides guidance and helps to safeguard trail user activities, therefore reducing potential liability of owners and managers.

There are three types of signage (FHWA 2023):

1. Regulatory signs inform trail users of selected laws or regulations,
2. Warning signs are used to caution users of potentially hazardous conditions and
3. Information or wayfinding signs provide trail users with information that is not required by law, but that enhances a user’s recreational experience.

Types of signage and proper signing of a trail will be discussed in greater detail in a subsequent chapter of this coursebook.

Liability Insurance

If a unit of government is the owner or manager of a trail, there is a great likelihood that governmental immunity provides significant liability protection. In addition to that protection, most trail managers will engage an insurance company to develop and implement a liability insurance package for trail events. There are several large insurance companies in the United States that sell event liability policies that protect event organizers from claims made against them because of injuries to individual participants and damages done to facilities during an event (e.g., a trail run or mountain biking competition).

Standard of Care Guidance

The statutes cited previously can provide important statutory liability protection. If they do not (i.e., they engage in reckless or wanton and willful misconduct), those land managers or landowners may be exposed to liability. The determination of this level of behavior is based on a case-by-case analysis of the conduct itself. There are obvious examples of misconduct, as well as other situations where misconduct is not so obvious as to pierce liability protection. Trail managers should take the following actions to maintain a high standard of care:

• Obvious and notorious unsafe conditions (e.g., deadfalls, cracked boardwalks, and other obvious safety issues with infrastructure) must always be cured and repaired in a timely fashion, particularly so when the conditions are obviously apparent and known to the public.
• In risky conditions, it is a good practice to notify and educate users of risks involved.
• Trail managers should think of the user groups a trail is designed and managed for and react accordingly with appropriate signage and other cautionary notices.
• Trail managers should conduct routine inspections and follow maintenance plans for critical infrastructure and the trail should be kept up through a high standard of care.

One idea that has been considered to help guide trail managers in their management of a trail is a trail certification program that would provide third-party inspections and certification of both trail design and trail maintenance activities.

Conclusion

Because the popularity of trails is largely dependent upon the willingness of the public to venture out onto trails, trail managers must take the steps necessary to ensure a safe and healthy outdoor experience. Much of this depends on a good trail management program, but it also depends on having good relationships with adjacent private property owners and ensuring that trail users respect private property rights.

Reference

Federal Highway Administration (FHWA). December 2023. Manual on Uniform Traffic Control Devices, 11th Edition. FHWA: Washington, D.C. Accessed April 29, 2024. https://mutcd.fhwa.dot.gov/kno_11th_Edition.htm