Question about legal issues regarding trespassing etc.

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Question about legal issues regarding trespassing etc.

Postby wpflaum » Jul 14, 2016 4:42 pm

Hi there,

first of all - hello. I have been an NSS member for close to 40 years now. I live in Munich, Germany. Worst of all - I am not actively caving any more but I love to ridge walk, hike and hunt mushrooms (my primary hobby nowadays). I do visit show caves every now and then (been to quite a few in the US).

Over here in Germany, you can basically enter any private or government property (without a fence or similar obvious obstruction) legally. This does not necessarily apply to caves, but you could enter any forest or plains area (unless it is a currently cultivated farm field and a few minor other exceptions).

Anyway - I always wondered about US laws. Over there, I did some hiking in National Parks etc. - where the rules are posted.

However, I never quite understood where I could legally hike on land which is not fenced but most probably private property. Do I always have to ask the owner's permission? Which could be quite difficult when hiking not knowing whom the land belongs to. I also noted that along many highways almost all access to land on the side of the road is fenced, even in desert areas. I suppose you can't enter there without specific permission, can you?

Someone also told me that hunting mushrooms (actually, my interests are less in edible species but rather for scientific - mycological - purposes) is more or less a problem without specific land-owner permission. Is that correct?

Sorry for all those questions but I always wondered what I could legally do in the US and have therefore always restricted most of my activities to National Parks etc. Sometimes I saw beautiful places I would have liked to hike to but didn't dare for fear of illegally trespassing.

Greetings from an old NSS member,

George
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Re: Question about legal issues regarding trespassing etc.

Postby trogman » Jul 15, 2016 3:15 am

Hello, George!
I cannot answer all of your questions, but will tell what I know. In my home state of Alabama, pretty much any land that is not clearly marked as posted is considered OK to walk on. The exceptions are: 1) If the land is fenced, 2) If it is obviously someone's yard or domicile, 3) If the owner has let you know that he/she does not want you on his or her land.

In the U.S., it is possible that laws may vary slightly from state to state. However, I believe that most other states have similar laws. This puts the burden on the landowner to make it crystal clear that their land is posted.

Of course the caveats are that some landowners are either unaware of these laws, or don't care. There is always a possibility (although it is unlikely) that someone will shoot first, and ask questions later. And if you are confronted by an angry landowner, especially one with a gun, it is probably best not to throw the law in his face. You may have the law on your side, but he does have the gun! :yikes: Then, if he insists on having you arrested, then you can explain it to the officer.

Also try to be aware of hunting seasons when you are exploring wild lands. If it is deer season, you had best be wearing an orange vest!

I hope this helps!

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Re: Question about legal issues regarding trespassing etc.

Postby wpflaum » Jul 15, 2016 4:46 am

Thanks a lot, Stephen. I noticed "No Trespassing" signs driving along highways. However, these are sometimes pretty obvious. There are other cases where you only see one every couple of miles. So I suppose it is somewhat hard to tell if the land I'd like to access is legal to enter if I had not seen a sign for miles or even a few thousand feet.

I am aware of all the guns in the US. Another reason to be more careful than what would be necessary over here. :-)

You know, this question always comes up when I read wonderful trip reports about hikes like the Appalachian Trail - which surely must cross a lot of private land. Now, I'm sure this is probably a pretty obvious trail and there isn't any problem there. But when people leave it to find the next village to buy some food etc. they should theoretically be trespassing every once in a while. I suppose that the Appalachian Trail isn't the best example because landowners would probably be used to hikers but there are lots of other nice places worth hiking to - like ghost towns, forests or even karst ridges.

I believe that many people know much about the situation near their own home. But as cavers you are probably encountering a lot of areas where you don't know every possible landowner, right?

How do you folks handle such situations - when you would like to hike to a place? (I can't imagine that you always go to the sherriff's office to check out all the possible owners/land ownership registration involved when hiking for a couple of miles?). Do you just walk around or do you first check (like in local bars, sherriff's office or whatever) if it is wise to hike there?
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Re: Question about legal issues regarding trespassing etc.

Postby GroundquestMSA » Jul 15, 2016 6:35 am

Trespassing in Ohio and several other states is defined as knowingly entering private property "without privilege", whatever that means. I have not been able to get a satisfactory explanation from law enforcement, lawyers, or the internet. I have twice faced the exact situation trogman describes. An armed owner and an armed lessee both "held" me for law enforcement. In the first case, an explanation was sufficient to get some forgiveness. In the second, I had obtained permission from the owner, and the lessee was made to look silly.

Despite having these awkward experiences, I don't worry very much about the legality of trespassing. If I am liable to be seen and potentially upset someone, I'll ask permission. If I think I can do my walking without causing any fuss, I do it, signs, fences, or not (within reason).
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Re: Question about legal issues regarding trespassing etc.

Postby graveleye » Jul 15, 2016 8:12 am

My wife and I went to check out a small cave adjacent to a large plot of land being cleared for commercial development. The representative (real estate agent) noticed us, and came up on a 4 wheeler. He drove right at me, as in a game of chicken and I just stood there. He had a rifle strapped to the handlebars and a large hog-leg holstered to his belt. His approach was pretty threatening, but when he stopped I walked to him and shook his hand and said with a smile, "Hi I am Kevin Glenn with the National Speleological Society and we were just checking out your cave here" and I apologized for not getting permission but we didn't know who to ask. Those that know me know I am pretty friendly and outgoing and in this instance I needed all of it because I was pretty outgunned. He instantly was impressed with the title I presented myself with because he noted the NSS plate on the front of my truck and had never heard of our organization. It sounded very, very important. Before I knew it he was telling me about the other caves and karst features and springs on the property. Then he tried to sell me the property!! He would make me a very good deal and the owner was anxious to sell. (Probably because they couldn't get logging equipment up on the ridge because of all the holes and rocks)

I've done a lot of "trespassing", but I usually ask around first, and pay close attention to what's on the closed cave list. I've never had any problems and I'm pretty sure I could talk my way out of it if trouble arises. I'm more worried about running into other more nefarious tresspassers like pot farmers, meth labs, moonshiners or just redneck jerks out to cause trouble.
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Re: Question about legal issues regarding trespassing etc.

Postby graveleye » Jul 15, 2016 8:17 am

Also, I love the sign above the entrance to Tumbling Rock Cave that reads "No trespassing without permission".
So, if you get permission, you can trespass all day long!!
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Re: Question about legal issues regarding trespassing etc.

Postby CaverScott » Jul 15, 2016 8:20 am

wpflaum wrote:..

You know, this question always comes up when I read wonderful trip reports about hikes like the Appalachian Trail - which surely must cross a lot of private land. Now, I'm sure this is probably a pretty obvious trail and there isn't any problem there. But when people leave it to find the next village to buy some food etc. they should theoretically be trespassing every once in a while. I suppose that the Appalachian Trail isn't the best example because landowners would probably be used to hikers but there are lots of other nice places worth hiking to - like ghost towns, forests or even karst ridges.

...?


Yes, it does cross private land. And as much as the landowner may not be happy about it, as long as you stay on the designated path/trail, you should be fine. This is often the case locally with various "Greenways" or "Rails to trails" projects. STay on the trail, you are fine. Leave the trail, you are often on Private Property (You know it is private since the land is posted. If it was not posted, no real concern but don't always assume you can do whatever you want.) :doh:
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Re: Question about legal issues regarding trespassing etc.

Postby Tlaloc » Jul 15, 2016 9:58 am

In many states there's no duty to post the private land. You can't (well you can but it's illegal) go onto private land without permission and it's your responsibility to find out where it is. As for trails such as the Appalachian, if you can use them it's because there's an easement for you to use the trail. The same is true for rails-to-trails trails. There was an easement for the train and now it's for recreation. Recently the Supreme Court ruled that land owners don't have to let railroad easements convert to public access and so this will make it harder for these projects in the future.
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Re: Question about legal issues regarding trespassing etc.

Postby idcanyon » Jul 15, 2016 12:45 pm

Out here in Idaho it has to be posted (sign or orange paint) or you have to have been given notice for there to be an issue (unless you are doing damage). I can't speak about other states.

In the west that is rarely any concern as public lands cover the majority of non-urban, non-farming areas, making them free to access without any concern for specific trespassing laws. In Idaho 2/3 of all land is public and that includes almost all land that is desirable to go ridgewalking on. Fencing along highways is normal, but only because public agencies like the BLM lease out grazing rights to ranchers. These ranchers only have the right to graze, not to prevent any public access. The ranches often only consist of small bits of private land, usually just the area around ranch buildings or former homestead sites, and heavily depend on public land grazing. You can freely pass through the many unmarked gates in the vast network of barb-wire fences, just be sure to leave them as you found them.
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Re: Question about legal issues regarding trespassing etc.

Postby wpflaum » Jul 16, 2016 6:38 am

Thank you all for your replies. Seems like still quite some care should be taken entering unknown pieces of land. Obviously, I would never even think of damaging something anywhere or leaving gates open, camping, campfires etc. - you can't do that here in Europe either. idcanyon - your post explained all the fencing I have seen in the West/Southwest. I would still feel somewhat "intruding" just entering such land - hmm. Well, I guess you would have to get "the feel" first about where it is ok to pass such gates. I guess I should rather stay on the safe side as I did in the past since I wouldn't have a clue as to which stretches of land are BLM etc.

Oh yeah, pot farmers and moonshiners are probably the kind of people I would not want to encounter either. They wouldn't know that I couldn't care less and would probably suspect me to be a snitch, I assume.

So if I ever feel a really urgent need to go someplace where the situation isn't absolutely clear I might still pull the "stupid Kraut" stunt :-) Helped me once with a minor traffic (speeding) violation. The deputy was impressed with my - true - stories about non-existing universal speed limits in Germany and let me off the hook.
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Re: Question about legal issues regarding trespassing etc.

Postby tncaver » Jul 16, 2016 7:08 am

Apparently in Tennessee it is illegal to cross anyone's property without permission. However, cavers have been known to
trespass quite frequently and there have been incidents where a gun was pointed at the trespasser. Guns have even been
discharged in the direction of trespassers which really gets one's attention. The bottom line is that trespassing in TN is
illegal and can be dangerous but it happens a lot. Do so at your own risk. Many states have property owner information
on websites that are based on property taxes. Those can help you find out who owns what. No guarantee you will get
permission but then again you might. I always prefer to get permission before I ridge walk. It is much safer and good for
land owner relations as well.
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Re: Question about legal issues regarding trespassing etc.

Postby caver.adam » Jul 18, 2016 7:34 pm

Kentucky law is complicated.

Law is found here:
http://www.lrc.ky.gov/statutes/chapter.aspx?id=39377

Basically, if it isn't improved, fenced, or posted then it is a class C misdemeanor and is punishable by a ticket/fine. If it is improved or marked then it is a class B. If you're in a house then its a class A.

But there is this interesting tidbit:
511.090 General provisions.
(4) A person who enters or remains upon unimproved and apparently unused land
which is neither fenced nor otherwise enclosed does not commit criminal trespass
unless notice against trespass is personally communicated to him by the owner of
the land or some other authorized person or unless notice is given by posting in a
conspicuous manner

That being said....if you're trespassing they aren't supposed to shoot you in Kentucky unless they fear for their life, so be the nicest person they've ever met while you ask forgiveness because what's supposed to happen and what actually happens isn't the same thing.
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Re: Question about legal issues regarding trespassing etc.

Postby tncaver » Jul 18, 2016 8:08 pm

It is illegal to shoot anyone for trespassing in all of the USA. It is a misdemeanor. Misdemeanors are not subject to deadly force.
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Re: Question about legal issues regarding trespassing etc.

Postby caver.adam » Jul 19, 2016 2:32 pm

There are two exceptions: If there person fears for their life, or if you are endangering their livestock (in some states). So don't give the other person an excuse.
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Re: Question about legal issues regarding trespassing etc.

Postby boreholio » Jul 24, 2016 10:01 pm

As TN Caver mentioned, names and addresses of property owners can probably be found online. In TN it's: http://tnmap.tn.gov/assessment/ I recently got access to a prime area, a swallet valley that resurges miles away, by politely asking a landowner who had previously chased off NSS members he found on his land that hadn't asked first. Found a blowhole too!
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