Tresspassers and Cable Gates.

[RanchMan]

I'm with your uncle! /w3tcompact/icons/mad.gif I was brought up to believe that trespassing was an extremely serious violation and not something to be messed with.

I think that people don't realize the criminal penalties/fines that can come from it. Under the right circumstances in Texas, for "generic" criminal trespass, you can go to jail for a year & face a $4000 fine. If you are caught poaching, again, under the right conditions, you can face a felony conviction which will put you away for up to 10 yrs and face a $10,000 fine.

A lot of folks are ignorant of the law. (e.g. You don't have to have a sign saying "no trespassing" to provide sufficient warning. Simply having "agricultural fencing" is enough. i.e. Don't cross fences!) Too bad a lot of folks don't take the time to understand what is "in and out of bounds."

Of course, just because those are the maximums, doesn't mean you'll get it, but you could. (Texas kindof has a reputation for not liking criminals very much). I'm sure that there are plenty of people who trespass in Texas, but it seems like it is worse in other states based on the comments found on TBN in general. Of course, that's simply an unscientific "feel" though...

 

[Charlie_Iliff]

Golfgar:
If you have a citation to the plowing case, I'd appreciate seeing it. Certainly there are some bizarre lawsuits, but most stories like that one and the one about the guard dog mauling a burglar are hard to substantiate. There are a number of cases in various jurisdictions where landowners set traps for burglars and lost sunsequent cases. Most states follow the old English "Spring Gun" rule that you can not set a trap which would do more harm to a trespasser than you would be able to do to him legally in person. People reporting those cases tend to embellish, however. Crooks do have too much protection, but I can't see a motorcylce riding crook getting to a jury on a theory that a field was plowed to trap him. If there's a cite, I'd appreciate your sending it along.
Thanks

 

[JoeR]

Cases like that should not even make it to trial!!

Joe

 

[Golfgar4]

Charlie,

I hear what you're saying, but as far as I know this story is accurate. It was published in an insurance newsletter that I subscribe to. It was a couple a years ago, but I'll see if I can find it. I'll probably have to go back to the agency's archives, but that shouldn't be a problem. Maybe I'll get some use out of the premiums that we pay!/w3tcompact/icons/laugh.gif

 

[Charlie_Iliff]

Golfgar4:
I hope you can find it.
Some years ago, products liability reform was being pushed in a lot of states using a "case" that everyone had heard of, and had been reported in a number of the rags distributed to lawyers. It was claimed that two guys trimming a hedge by holding lawnmower over it from either side managed lose control and one got hurt. He allegedly won a lawsuit against the lawnmower manufacturer. Everyone believed it for a couple of years, but when the proponents were directly challenged, they couldn't find it in any court in the country. Someone finally decided that it had been a trial practice exercise somewhere, but I never even saw that confirmed. Needless to say, it set back the cause of products liability tort reform, at least in Maryland.

 

[rancar]

Dan,

What you describe sounds something very similar to what I experienced several years ago. My wife and I purchased a land parcel adjacent to our original parcel. There is an old town right-of-way traversing the parcel we bought. For many years, snowmobilers would use this old right-of-way for fun, drinking, etc. After we purchased the property, our attorney advised us NEVER, NEVER install anything that looks like a cable or any other kind of hidden trap (such as dug trenches) to prevent this type of trespassing. He said that we the landowners would be liable for civil damages or worse if anyone attempting to cross our property was injured or died. He said the only thing that we could legally do was to post the property and take out notices in local newspapers warning against trespassing. We've done the posting but I also did something else. I installed two old telephone posts, about 6' high on both edges of the old right-of-way that is on our property boundary. I nailed 2"x12" pressure treated lumber across the 6' posts..more or less making a very visible, solid wall for everyone to see. On these boards, I posted as well. On either side of the posts, I stacked old debris, fallen trees, slash, and so on. In other words, I provided a physical barrier so visible that no one would be mistaken that it was anything other than a physical barrier. My attorney said this was OK. So far, so good....no trespassers since I installed my wall of wood.

Now, let me give you some legal principles that my attorney told me I would be in violation of if I tried to stop these trespassers any other way. It is a form of an easement...but to make it really clear, I'll just quote from a legal journal article on this topic. It reads as follows:

<font color=green>"An easement is a nonpossessory interest in land. It is sometimes known as a right-of-way, and allows the owner of one parcel (the dominant tenement) to cross over the land of another (the servient tenement). Though easements are normally acquired by deed (or even if not mentioned in a deed they pass with the conveyance of title) they may also be acquired by an adverse use, known as an easement by prescription. The elements necessary to establish an easement by prescription are identical to those required to establish title by adverse possession with the exception of the payment of taxes. Therefore, one who has used a specific defined easement area (that is, a specific width and length) for at least five years and that use has been open, notorious, adverse, continuous, and uninterrupted, he can file an action to quiet title to establish an easement by prescription, in the same fashion as claiming title by adverse possession...The typical prescriptive easement situation arises where one party has for more than five years travelled across a specific trail through someone else's property in order to reach their property. In this fashion, an easement therefore may be acquired by prescription. In order to prevent someone from obtaining an easement by prescription the owner of the real property may record a notice or post signs without the necessity of taking any legal action or physically interferring with the person's adverse use. If either of these procedures are complied with, no one may obtain an easement by prescriptive use."</font color=green>

Bottom line: These trespassers have legal rights called an easement by prescription, whether the landowner likes it or not. /w3tcompact/icons/shocked.gif Of course, one has to examine the laws that apply within one's state. But, the landowner also has some rights and the law doesn't preclude the landowner from making it just a little difficult for the trespasser to trespass....as I did with posting and my wall of wood. I did not physically stop these trespassers...I just made it extremely hard for them to trespass that they got discouraged and went elsewhere. So far, it has worked. They also don't know about this legal principle of easement by prescription. If they did and wanted to bring their case to a court of law (at their expense of course) they would likely have a case, but unfortunately at my loss. /w3tcompact/icons/sad.gif

Regards,
Bob Ancar
Cambridge, NY

 

[Jag]

This was such a timely post.... This evening when I got home I have found out the one of my gates and lock had been shot up. I teach a line dance class for handicaped kids on Tuesday nights and when I got back home about 9:00 I had a message form the guy who lives next door. He had heard a lot of shooting just around the corner from his house and when he went to check it out. His house is nearer the gate than the far side of my field. He got there in time to get the tag number of the truck leaving the gate. He tried to call and when he could not reach me, he had already called the sheriff before I got home... It will be tomorrow before I find out what all happened.. But since I have had the sheriff out and several tresspassers ticketed all the people who live nearby seem to be helping watch the area. I do not know if they have had anyone ticketed, but they sure do not mind helping me get someone ticked.

 

[bgott]

Gee Whiz, are you un- American? How would attorneys make a living if they weren't able to sue anybody and everybody that might have a buck for any silly reason?

 

[PhilNH5]

Last winter in Salem NH there was a similar case. Two under 16 YO teens on a 4 wheeler (ATV, OHRV, quad-runner or whatever they call them in your area) tooling around on a frozen lake that has many summer camps/cabins. They went up a private road into someone's drive. A cable caught the driver under the next and crush his windpipe. Passenger was unhurt and watched his freind die.

No charges filed against the landowner. Teens were at fault for a number of reasons. 1) unregistered OHRV
2) Driver did not have required safety class 3) No helmets and 4) carrying a passenger is prohibited by teen drivers I believe.

Passenger was quoted in paper as being upset that no one would answer the door at all the cabins he went to for help. Never occured to him that these were summer cabins buttoned up for the winter.

As a follow up - the local paper did an article on the hazards of thin ice due to the extremely warm weird winter this year. Interviewed snowmobilers and 4 wheelers on the same lake as the above incident. Found the surviving passenger tooling around on a 4 wheeler on the thin ice. Reporter recognized the name and asked the obvious. Kid replied he couldn' live in the past and wasn't going to let one incident ruin his fun.

Live Free Or Die -> NH state motto.

No lawsuit, at least not in the papers anyway.

 

[Golfgar4]

Charlie,

I would not have believed that something published in a "reputable" trade publication would be that blatantly false. Sure, in the Enquirer you expect it. But if this turns out to be similar to what you saw in the lawyers publications, I'm going to be really upset. I've never had any reason to doubt the case histories that are presented, but then again, the publication is not directly affiliated with my organization. I'm going to have to work even harder to see if I can track this down now!