On Fri, May 29, 2020 at 11:03 AM Adam Franco <[email protected]> wrote: > Adjacent to Kevin's home state of New York, here in Vermont we have a > slightly more open private-land access laws. While property owners may post > no-trespassing signs (access=private) (statute), the default when unsigned is > access=permissive for non-motorized crossing of land. To encourage public > access of private land the state limits the owner's liability unless the > damage or injury is the result of the willful or wanton misconduct of the > owner.
New York offers the same indemnification -- non-paying, uninvited visitors cannot recover from the landowner except in the case of willful or malicious failure to guard against or warn of dangers. Use of a public-access easement, or wandering onto unposted land, does not constitute an invitation. But that's a general protection whether you post or not - you simply aren't responsible for the safety of uninvited guests if you don't do anything malicious. (You cant set traps, or knowingly steer them into danger, but you have no responsibility to guard them against hazards that exist for other reasons.) While non-motorized access to unposted land is not a legal default, New York offers "ASK PERMISSION SEE LANDOWNER" stickers free of charge to go on posters indicating that access may be granted to strangers https://www.dec.ny.gov/docs/wildlife_pdf/askperm.pdf, and similarly offers a standard-form permission card that landowners may use: https://www.dec.ny.gov/docs/wildlife_pdf/ask.pdf. Many landowners use them; they consider law-abiding visitors to be their eyes and ears for problems with the property. Simple NO TRESPASSING posters serve only to exclude the people you _want_ to visit, and are no deterrent to poachers or vandals! The state will also, in some cases, purchase access easements, usually offering a corresponding decrease in the assessed value of the land and hence a decrease in the property taxes. (I'm not all that versed in those matters. My brother is more up on it than I am. He has foregone some of his development rights because undeveloped forest land is taxed at a lower rate; the Boy Scouts lease a trail easement across his back acreage in the summer; and there's a hunting club that leases the hunting and fishing rights, so he gets a little bit of compensation; but he hasn't granted rights to the public at large. I live in town and don't deal with that sort of thing except as a hiker.) I've done a fair amount of travel across easements on land belonging to large timber concerns such as International Paper. On Fri, May 29, 2020 at 1:06 PM Colin Smale <[email protected]> wrote: > In the UK it is apparently not required to demonstrate actual damage: > https://www.inbrief.co.uk/land-law/trespass/ > > You might like to peruse this document, which is an explainer for members of > parliament: > https://researchbriefings.files.parliament.uk/documents/SN05116/SN05116.pdf From the latter page: "Where the trespass is trivial, damages may be nominal and an injunction refused. Where a trespass concerns some use of the land without causing damage, the damages will be measured in relation to the value of the defendant’s use." A plaintiff who sues someone who is unknowingly encroaching and causing no actual damage is likely to wind up with peppercorn damages. What is the value, after all, of walking along someone's hedgerow to get to the next field over? > If any actual damage is done however, then the damage itself may constitute a > criminal offence ("Criminal Damage"). > > As trespass is a civil tort the police won't turn out to help. You (the > landowner) will have to take the trespasser to court, which is an inalienable > right. The question is then, how will the magistrate think? What makes a > valid claim, and what is a valid defence? As it is not a criminal case, I am > not sure if mens rea comes into it. But the "intent" will definitely > influence the court. As they say, ignorance [of the law] is no excuse; so > pleading that you did not realise it was private property or that you were > not allowed to be there will not help, possibly unless you claim that you has > misread the boundary on a map, for example. That is ignorance of the facts, rather than of the law. Ignorance of law is no defence - you can't offer up, "I didn't know that trespassing is illegal." Ignorance of fact is, "I didn't know that I'd left public land." It's an affirmative defence; the burden of proof is on the defendant to offer evidence of what led to the incorrect assessment of the facts - for example, the misread boundary that you mention. Particularly in the areas that Adam and I discuss, there is so much public land with complex boundaries that if an owner doesn't post, it's easy to make the case that you unknowingly crossed the boundary between public and private domains. The matter is compounded by the fact that the vegetation and topography of our woods present certain, ahem, navigational challenges. The GPS signal can be quite dodgy, and the sight lines for map-and-compass navigation are short. A lot of the time, my best guess for my location comes from altitude (I carry an altimeter) and aspect of slope. Then again, when you're pushing through stuff like https://www.flickr.com/photos/ke9tv/14738136242, does anyone care if you're trespassing? Once a landowner has demanded that a trespasser leave, and the trespasser refuses, the line (at least in my state) separating civil from criminal trespass has been crossed, and in egregious cases the police will indeed turn out. The demand may be served by posting the land, by informing the trespasser in person, or by serving a potential trespasser with legal notice to stay out. > Walking across what is clearly someone's garden and then claiming you thought > it was open-access land is not going to get you anywhere, I suspect. Walking across what is clearly someone's garden is invading the curtilage of the associated dwelling - which I already offered as an example more serious than simple invasion of unposted land. The systems aren't all that different. A man's home is his castle, and his land is his kingdom. Cuius est solum, eius est usque ab inferos et ad coelum. But the king in modern law may not be an absolute monarch. -- 73 de ke9tv/2, Kevin _______________________________________________ Tagging mailing list [email protected] https://lists.openstreetmap.org/listinfo/tagging
