Frequently Asked Questions About OS and OS-1 Ranch/Reforestation Lots
by Mike Hansen
ORIGIN OF OSTLER RANCH LOTS:
In 1969 the REFORESTION COMPANY of Sand Point, Idaho bought the Ostler Family Ranch grazing area encompassing 8640 acres. This land is located on the upper reaches of Chimney Creek, Cottonwood Creek and Hoover Creek in Powell County, Montana. Be aware that REFORESTATION created many similar subdivisions throughout Montana, Idaho ,and Washington. So the correct term for mentioning where you own land is the OS or OSTLER RANCH properties in Powell County.
This mountain timberland and grazing land had been an ongoing timber resource and summer grazing land for the Ostler Ranch and the previous ranch, 301 Ranch / OT Ranch.
1. HISTORY
After Reforestation’s purchase of these 8640 acres, they accelerated the pace of timber harvest, ending in about 1977. Before the timber removal/ logging was completed, Reforestation designated this area of their landholding as the Ostler Ranch and began surveying 10, 20, and 40 acres parcels for resale. This survey work started in the middle of the 8640 acres in Section 3, Township 12N, Range 11W, where there were open grassy areas with springs and timber already harvested or minimal timber value. When the first promotional map of the area was printed, the Ostler Ranch name was shortened to OS. This numbering and surveying of lots proceed north from Section 3 towards the access roads to the area that came up from Highway 271.
By 1977, the survey work was pretty much completed. When they surveyed the southern part of the Ostler Ranch, the survey started numbering lots again starting with lot 1, but in a second phase of numbering designated OS-1, then the lot number. Keep in mind in most cases, there are two lots within the 8640 acres area with the same lot numbers, but with either the OS or OS-1 prefix. These lot numbers are not legal descriptions. The lot number destinations were just a quick and ready reference to help identify lots on their promotional maps and brochures.
While a competent enough survey crew drew maps and located the lots on mother earth, there was never a registered survey done by the original company. Registered surveys or CERTIFICATES OF SURVEY became a state legal requirement after the OS and OS-1 lots were laid out. For every corner of each of the OS/OS-1 lots a 3 x 5 aluminum tag was nailed to a tree, close to the corner, pointing out where the lots corner is located. So, the tags are rarely on a corner, just placed hopefully in a conspicuous location close to a corner. At the bottom of each corner tag, the direction and distance to the corner is spelled out. Also, these aluminum tags were placed along roadways in noticeable locations, again, tag information laying out how far it is to a corner. Unfortunately, the writing on the lower half of these tags is often faint due to time, hard to read and decipher, or destroyed. But these roadway tags are almost never corner locations. Any metal stakes/pipes/rock monuments/concrete with corner marking have been placed by landowners, not surveyors. If a corner is part of the USGS grid work monument system, the corner will be a large heavy brass cap on a metal stake and have 1914-1925 dates and tell you which part of what section is being marked. In recent years (1975 and later) corners that have been resurveyed will be aluminum caps with the surveyor’s license number on the cap. There are quite a few mismarked aluminum tags as to lot numbers — be aware. Now, 45-50 years since the tags were nailed up, for sure half or more of the tags have been destroyed by trees falling down/gun fire/rodent gnawing etc.
2. LEGAL DESCRIPTIONS
The legal descriptions for our OS/OS-1 land is called an ALIQUOT PART legal description that describes what part of a section we own. You take a 640-acre section and divide it into four 160 parts; for example, NW¼ or the SW¼ or the NE¼ or the SE¼, so four 160-acre parcels; divide each 160 into four parcels and you get 40 acre parcels; then divide a 40 in half to get a 20 acre parcel. The 40’s when divided can be either the North half or South half or East half or West half.
OK, not all sections have 640 acres, some have more, some less. So while our legal descriptions describe what portion of the section we own, if a comprehensive survey were to be completed, might turn out we own 19.84 acres or 20.33 acres. If you want to know, the Powell County Courthouse Clerk and Recorders Office has the old section maps and notes, and they will show exactly how much land they think you own, give or take.
In Section 4, two Lutherville, Maryland doctors bought that section of 640 acres from Reforestation and created the subdivision within the OS/OS-1 area, often referred to as Elk Park Estates. This is a Certificate of Survey division of lands, and the correct legal name on Certificate of Survey #56 of Powell is “Dude Ranchettes.“ The Elk Park Estates name is a confusion from a Polson real estate agent who placed signs on the six lots he had for sale and called his listing Elk Park Estates. The lots, roads, and parkland in this section all have survey monuments.
3. ROADS
The roads we travel to our properties are for the most part old logging roads. When the mother logging company (TREE FARMER INC OF MISSOULA) began logging in the area, it bought easements from the parent landowners, along with buying the timber to be harvested. This series of easements were provided to you for your inspection at the time you purchased your property by the title company in Deer Lodge. (OK, should have been provided.) In essence what those easements say is that a 40-foot easement has been dedicated for ingress and egress. The legal term is an “easement in gross“ in this case. This term describing an easement that has not been surveyed precisely gave the timber company the option of building roads most any place they felt necessary. So an easement means where the road crosses your land. You own the land under the easement, but the easement gives anyone owning property in the OS/OS-1 area, their families, and their guests the right to travel that road. As owner of an easement to your “home/cabin/hunting camp/tent city,“ the law says you have the right to “peaceful use and enjoyment of your land, to include uninterrupted and unrestricted travel on your easement.”
From this language and court precedent comes the history of gates on landowner easements. A landowner is not required to get out of his buggy/truck/car/ATV/vehicle to open and close a gate on his easement road to get to his property. When a landowner with grazing livestock wants to keep his animals at home, he is permitted to install “drive over cattle barriers/cattle guards” at his expense and at his maintenance expense, but he cannot install a gate/chain/wire fence/swinging pipe, etc. We have easement roads, not right-of-way roads. Right-of-way means a third party owns the land under the roadbed, almost always the county or state or US Government
Within in the 40-foot easement, landowners can repair their road, cut trees down that have grown in and block the easement visually or physically, use material within the 40-easement to repair holes in the road, take gravel to make a usable road, etc. This 40-foot easement starts at Highway 271 on both the Mud Creek/Weaver Hill Road and Hoover Creek/High Road until the easement reaches the OS/OS-1 lands and extends throughout our 8640-acre parcel area.
In researching the road easements within the OS /OS-1 acreage, I have discovered that many of the deeds for lots show the parent company (Reforestation ) reserving a 60 foot right-of-way unto themselves and for the use and benefit of all lot owners. I cannot at this time confirm that all lots are subject this 60 foot right-of-way, but I counted over 30 parcels in Sections 10 and 11 with the 60-foot reservation.
The Hoover Creek Road that starts at I-90 Exit 162 is a Powell County road, assumed to be a 60-foot easement (this is the county standard unless otherwise stated). It is also an easement from the old highway/frontage road to the OS/OS-1 lands. County research has shown this old road that began to be established in the late 1860’s before Montana and Powell County existed was established by the government land office as a GLO Road (Government Land Office Road). Several county attorneys that researched this road for the Powell County Commissioners determined that the road started at the railroad at Jens (the old name for exit 162) and extended up Hoover Creek, over the divide to Cottonwood Creek, and down Cottonwood Creek to Helmville.
So which roads are the “legal OS-OS-1 roads“? My experience has been that only a judge can decide. And judges have decided in multiple court cases. The earliest case that I am aware of was filed in 1981, one of the latest cases was 2018. Quite a few different judges and attorneys have argued this back and forth. In all those cases, the judge used the old OS-OS-1 original promotional sales map, dated 1977 (the date is in the lower left hand corner), as the standard to establish “legal roads“ and other roads. These maps are available from GMPOA. If there is doubt about a road, check the map–and it requires some interpretation. Don’t be confused by the Powell County Emergency Services map book which has several editions. It names most of the roads in the area for emergency responders to use to located people with problems. They often even have names for your private driveway and for roads that are not within the OS/OS-1 properties maps. And sadly, we have quite a few roads in common use that are not shown on the OS-OS-1 map.
All the roads in Elk Park Estates/Dude Ranchettes are 60-foot wide easements as shown on the COS 56.
4. GATES
If you put a gate on your driveway, be aware that to comply with Montana Law, a gate/travel barrier has to be a panel gate. If you put a cable, chain, wire with a sign hanging, a big USFS-type pipe gate or similar across a roadway, be it a private road or an easement road, the law in about 25 western states considers this a public nuisance. So, when a snowmobiler hit a pipe gate in the OS/OS-1 area, a gate blocking a legal OS-OS-1 road, and said snowmobiler died from the injuries, the landowner whose property was under the gate lost the lawsuit and paid about $700,000. The BLM throughout the western states has been removing all their big nasty pipe gates. The USFS has been slower to get going on this issue but is doing the same thing. Decapitating snowmobilers, ATV riders, UTTV riders, joggers and hunters in the dark is just a bad idea and the courts agree.
5. SUBDIVIDING OS/OS-1 LOTS
The short answer is no. The original OS/0s-1 lots were created under the Montana Subdivision and platting act in effect in 1970. At that time, 10 acres was the smallest parcel size that could be created with an ALIQUOT PARTS legal description. In 1984, the smallest number was changed to 40 acres. In the early 1990’s, 160 acres was the minimum size. About 1994, Powell County passed a county zoning ordinance that prohibited further dividing of parcels in the north half of Powell county, which includes the OS/OS-1 parcels. The last word on this is the Powell County Planning staff and county surveyor.
6. LANDOWNER HISTORY and why it could matter
While Reforestation bought the land we all own from the Ostler Family Ranch, the land Ostlers owned was a jumbled mix of properties bought by the 301 Ranch over the period of about 1925 through 1966. Some sections were old original homesteads, some sections were purchased from the Government Land Office, and quite a few were purchased from the Northern Pacific Railroad.
This can make a difference because it can affect access and/or mineral rights. Properties that were original homesteads have access to their nearest post office/public road. So, in my Section 12, where you come up the steep cattle guard on Hoover Creek and into OS/OS-1 properties, this whole section was homesteaded by a fellow named James Kellson. He filed his homestead in 1917 and received his Homestead Patent (government deed) in 1922. His patent says he received no mineral rights. But through the process of living on and improving his land, he gained the right of access to Jens. From 1922 until 1969 this section had 7 landowners.
The next Section to the west, Section 10, was bought from the railroad by a local rancher who also owned Section 11. In the deed from the railroad to the rancher, the railroad kept the mineral rights. No mention was made about access. At the time, the ranch had legal access with his purchase of Section 11 and the rancher probably was worried about driving his cattle onto his adjacent ownership.
If you are interested, you can research your land history, and much of this information is online.
On the Bureau of Land Management (BLM) website, go to the property research /patented research drop down; identify Montana; then search by Township, Section, and Range. What you are looking for is the original PATENT (government deed) where your property was originally transferred to private ownership. This information is NOT at the courthouse, and both local and state government and many attorneys are painfully unaware of the existence of these documents that often predate Montana being a state, and Powell County’s existence.
More later information can be viewed by going to the Powell County Clerk and Recorders office and asking to view the chain of title books, located in the books by your Township, Section, and Range.