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

[Kevin Kenny]

On Fri, May 29, 2020 at 11:03 AM Adam Franco <adamfranco at gmail.com> 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 <colin.smale at xs4all.nl> 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