A three-woman, four-man Carbon County jury heard a prosecutor allege Wednesday that four Missouri hunters “wanted an opportunity to challenge the law” when they corner crossed to access public land while hunting near Elk Mountain Ranch.
County Prosecutor Ashley Mayfield Davis told the jury that the hunters had to pass through the airspace above private Elk Mountain Ranch property as they went from one parcel of federal property to another in 2021. “Landowners don’t just own the land,” she told the jury, “you also own your airspace.”
But an attorney for the defendants, who face counts of criminal trespass and, for three of them, an alternate charge of trespassing to hunt, said the four never set foot on another person’s property.
“What you won’t hear is [that] these men ever touched private property,” Trevor Schenk said. The case will show that Phillip G. Yeomans, Bradly H. Cape, John W. Slowensky and Zachary M. Smith went from one piece of U.S. Bureau of Land Management property to another where the parcels share a common corner with two pieces of Elk Mountain Ranch land.
“These men traveled through the air above the ground,” he said. “They did not touch any private property.”
“This,” he said, swishing his arm over an imaginary property line, “is not criminal trespass.”
The case involves the checkerboard pattern of land ownership in parts of Carbon County — and millions of acres in the American West — where private and public land are interspersed. Corner crossing involves stepping from one piece of public land to another at the common corner with two pieces of private property.
The misdemeanor trial before Carbon County Circuit Court Judge Susan Stipe is expected to last two days although she cautioned that timeframe is an estimate.
Before the lawyers presented their opening arguments, Stipe guided the six defense attorneys, two prosecutors and 58-person jury pool through the jury selection process that lasted about five hours.
In her opening, prosecutor Mayfield Davis framed the case as one an elementary school student could understand. She used an example of a school child reaching into the private mailbox of another student at school to illustrate how young people learn about limits.
“In life there are boundaries everywhere,” she said.
Those exist at Elk Mountain Ranch where Fred Eshelman, a North Carolina businessman, philanthropist, conservationist, hunter and donor to conservative political causes, holds title to the private sections at the four-parcel intersection in question.
Mayfield Davis focused on the airspace above Eshelman’s property.
To corner cross “you’re going to break that plane” above the private property boundary line, she said.
“They essentially are pushing their boundaries,” she said of the hunters.
Land ownership includes the right to exclude others from the property, she told jurors. By posting “no trespassing” signs on fence posts on the private land at the corner “they were asserting their ownership right” she said.
The four wanted “to take somebody else’s property and use it without compensation,” Mayfield Davis said.
Attorneys from both sides appeared to agree that testimony will show that the hunters used a fence ladder to climb over the two fence posts in question. The posts were placed close together — each on a separate private parcel — and connected with a chain and lock.
Attorneys also appeared to agree that a brass survey monument marks the corner in question and the hunters used a Global Positioning System device, maps and land records to locate it before making their crossing.
Another defense attorney, Ryan Semerad, said the hunters had several times talked to law enforcement officers about corner crossing. Evidence will show that a Game and Fish warden said corner crossing is “not a crime” and that a sheriff’s deputy told the men he would not cite them, but would report the matter to the county attorney.
“What would you think?” Semerad asked jurors about corner crossing under those circumstances.
A sheriff’s deputy ultimately cited the four with criminal trespass at Mayfield Davis’ request, according to court documents and previous statements.
Criminalizing corner crossing effectively turns a landowner into a king, Semerad said, who can exclude the public from public property. The United States has no king, he said, Wyoming has no king, nor does Carbon County.
“Elk Mountain certainly has no king,” Semerad said. A private landowner “can’t take public land.”
Mayfield Davis called one witness on the first day of the trial — Eshelman attorney Greg Weisz. Described as a land-ownership specialist, he said he was familiar with the ranch, its boundaries and easements. At the corner in question “there are no easements for access for the public,” he testified.
Private Elk Mountain Ranch property surrounds several sections of public land, he said.
On cross examination defense attorney Semerad asked whether the warranty deed for the property says that Eshelman’s Iron Bar Holdings LLC “owns and controls the corner.”
“The deed doesn’t say that,” Weisz said.
Weisz has filed a separate civil suit for Eshelman’s Iron Bar Holdings LLC against the four hunters. He said Wednesday he had not thought about whether he would bill Eshelman for the time he spent as a witness in the criminal trespass case.
Questioning Weisz, defense attorney Patrick Lewallen said that there was an attempt to subpoena Eshelman for the trial but that the subpoena was “quashed.” Weisz said only that he knew a sheriff’s deputy had gone to the Elk Mountain Ranch to serve a subpoena and that Eshelman was apparently not there.
Weisz said he talked to Eshelman at the businessman’s office telephone number in North Carolina that day.