[Tagging] Examples at https://wiki.openstreetmap.org/wiki/Key:access

[Adam Franco]

On Fri, May 29, 2020 at 9:48 AM Kevin Kenny <kevin.b.kenny at gmail.com> wrote:

> We have no 'right to roam' here other than the fact that you haven't
> been trespassing unless you knew or should have known that your
> presence was unlawful, and are legally liable only for damage you
> cause.

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
<https://vtfishandwildlife.com/learn-more/landowner-resources/private-land-and-public-access>
no-trespassing signs (access=private) (statute
<https://legislature.vermont.gov/statutes/section/13/081/03705>), 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
<https://legislature.vermont.gov/statutes/section/12/203/05793>.

Going back to driveways and private roads, most Vermont Towns are loath to
take on the additional maintenance burden of access roads to just a few
houses and so a large number of small roads and shared driveways are signed
"Private" or "PVT" on the street sign. (Example of PVT
<https://www.mapillary.com/map/im/PMULt1ZEwj3oFOLwWrM9zH>) This indicates
that maintenance of the road
<https://legislature.vermont.gov/statutes/fullchapter/19/027> is the
responsibility of the private land-owners and the Town is not responsible
for it. Residents on private roads that serve 3 or more houses may also
petition their Town to take on maintenance and make it a public road. The
"Private" designation in this fashion does not imply access restrictions,
only maintenance responsibilities. Unfortunately, some mappers in my area
have been blanket-tagging all of these as access=private which I believe to
be a mistake. The TIGER import also tagged all of these as access=private.
Many people in rural areas like their privacy and going up a road serving
several houses without going to one of those houses may prompt inquiry, but
it is is not prohibited until you are told to leave by sign, verbal, or
other clear indication. I'm fine with tagging these access=destination as
that seems to fit better than access=private.

Privately owned roads where owners clearly don't want public access are
often gated and/or be posted with "Private, no trespassing" signs and these
are what I think should be tagged access=private. If all driveways/private
roads are tagged with access=private, then that distinction becomes
impossible to disambiguate.


On Fri, May 29, 2020 at 9:48 AM Kevin Kenny <kevin.b.kenny at gmail.com> wrote:

> On Fri, May 29, 2020 at 6:32 AM Colin Smale <colin.smale at xs4all.nl> wrote:
> > In the UK (especially Scotland) land ownership is pretty absolute. Every
> bit of land is owned by someone, even if that owner is The Crown. The owner
> has an absolute right to determine who has right of access, except for
> certain cases, like a Public Footpath or designated open access land that
> falls under the "right to roam" legislation. A person's house and driveway
> does not fall under these exceptions, so there is no right of access,
> except with the landowner's permission. So here we have "access=private".
> That does not mean you cannot knock on the door, or deliver a parcel
> however; whether by so doing you are committing civil trespass is not a
> priori clear - it depends on the circumstances; modelling all these
> circumstances in OSM is an enormous challenge that I don't think we are
> looking to solve here.
> >
> > Despite private ownership, the exceptions I mentioned (public highway,
> open access) are "access=public" AKA "access=yes". It is illegal to prevent
> access.
> >
> > Of course there are rules and limitations in all cases as to the type of
> access: public footpaths are deemed to be ±1m wide and access is only
> granted to pedestrians, not to motor vehicles for example.
> >
> >
> >
> > I believe that there is a defence to trespass on the grounds of "custom"
> > which IMHO would cover deliveries to your door, or someone needing
> > emergency help, or door-to-door salesmen (all in the absence of explicit
> > signing to the contrary of course).
>
>
> _Mens rea_, at least in most of the US, is an element of criminal
> trespass, and the liability for the civil tort of trespass is limited
> to actual damages in most cases. Since most of the key definitions in
> this part of the Common Law were established before our legal systems
> diverged, I imagine that is so in the UK as well. If you haven't
> damaged property by your unauthorized presence, and you haven't been
> told that land is private or invaded the curtilage of a dwelling, the
> owner has no cause of action. In effect, all they can do is to demand
> that you leave; the cause of action doesn't arise until you fail to
> comply.
>
> Being told that the land is private can be accomplished with signage,
> which is why 'POSTED' and 'PRIVATE ROAD' signs are ubiquitous in the
> US.  (And, of course, Louisiana law is different!)
>
> We have no 'right to roam' here other than the fact that you haven't
> been trespassing unless you knew or should have known that your
> presence was unlawful, and are legally liable only for damage you
> cause. (My state also negotiates public access easements with many of
> the timber companies, who are willing to tolerate the presence of
> hikers in order to get a small tax break.)
>
> This gives rise to a number of paths whose legal status is unclear -
> which means that until asked to leave, you're potentially liable only
> for damage that you cause. Building fires or camping both tend to be
> considered damaging activities intrinsically (although I'm unaware of
> any coherent body of law on the matter), and someone carrying a
> firearm or a fishing pole can be presumed to be poaching, but simply
> walking on a private trail that isn't obviously in the curtilage of a
> dwelling, gated, nor signed, is pretty much in the category of
> "unlawful, but the law is unenforceable."
>
> If a formal trail winds up falling into that circumstance, and a new
> landowner objects, the trail _may_ be relocated, but it's commoner to
> negotiate a settlement involving an easement for the trail. In the US,
> as in the UK, there are also trails that use nearly-abandoned
> rights-of-way from roads that predate the automobile. Until and unless
> the landowner successfully pursues an abandonment proceeding in court,
> the rights-of-way remain open. For this reason, boundary-line trails
> like https://www.openstreetmap.org/way/456137516 may be mismapped if
> they're shown as crossing the property line, or the property line may
> be mismapped, but it's equally likely simply that the property line is
> indefinite and the trespass, if there is one, is tolerated. It's
> surely not a reason to abstain from walking a marked path for fear of
> trespassing.
>
> The root cultural assumption has changed in my time.  I can recall a
> time when few farmers cared about walkers in their fields, as long as
> you kept to the field edges or tracks so as not to trample crops,
> refrained from disturbing the livestock, and left the gates as you
> found them. Few farmers troubled to post. Now there are posters
> everywhere, and a general sentiment that 'everything is forbidden
> unless explicitly allowed.' Eventually, I expect that the codified law
> will come to follow the new belief, so I may be a member of the last
> US generation that remembers a customary freedom to roam.
>
> In my state, all navigable waterways belong to the state, and the
> definition of 'navigable' arose at a time when trading by canoe was
> common, so you pretty much have the right to paddle across anyone's
> land, but not to land your boat nor to portage. (And of course,
> there's a distinction made between types of hazards. You can portage
> around a fallen tree, because that's held not to affect the
> 'navigability' of the waterway itself, but not around a waterfall.)
>
> In the Common Law countries, there's a whole continuum of case law
> between 'yes' and 'no'.  OSM probably does not want to get into
> mapping the finest details: "don't map the local law, unless bound to
> objects in reality."
>
> _______________________________________________
> Tagging mailing list
> Tagging at openstreetmap.org
> https://lists.openstreetmap.org/listinfo/tagging
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.openstreetmap.org/pipermail/tagging/attachments/20200529/56f5792d/attachment-0001.htm>