Trespass

A sign warning against trespassing

Trespassing is unauthorized entry onto land. It can also refer to injury caused to another person. Neither malicious intent or knowledge of ones actions are necessary to commit the crime of trespassing.

Definition

In law, trespass can be the criminal act of going into somebody else's land or property without permission of the owner or lessee or a civil law tort that may be a valid cause of action to seek judicial relief and possibly damages through a lawsuit - see trespass to land.

In some jurisdictions trespassing is an offense or misdemeanor covered by a criminal code. In other jurisdictions, it is not considered a crime or penal in nature, property is protected from trespass under civil law and privacy acts. Although criminal and civil trespass laws vary from each jurisdiction, most have the following facets in common.

Property owners and their agents (for example, security guards) may only use reasonable force to protect their property. For example, setting booby traps on a property to hurt trespassers or shooting at trespassers are usually strictly forbidden except in extreme circumstances. A notable exception is the U.S. state of Texas, where it is legal to use deadly force against trespassers after dark.

Not all persons seeking access to property are trespassers. The law recognizes the rights of persons given express permission to be on the property ("invitees") and persons who have a legal right to be on the property ("licensees") not to be treated as trespassers; for example, a meter reader on the property to read the meter. A police officer or process server seeking to execute a warrant is an invitee. Someone such as a door-to-door salesman or missionary (a Jehovah's Witness or Mormon for example), would be a solicitor and not afforded the invitee exclusion to enter, and therefore be a trespasser.

Most jurisdictions do not allow "self-help" to remove trespassers. The usual procedure is to ask the trespassing person to leave, then to call law enforcement officials if they do not. As long as the trespasser is not posing an immediate threat, they cannot be removed by force. It is usually illegal to arrest a trespasser and hold them on the property until law enforcement arrives as this defeats the purpose of allowing them to cure the trespass by leaving. A large exception to this rule are railroads in the USA, who employ their own police forces to enforce state trespassing laws. Railroad police have the ability to independently arrest and prosecute trespassers without the approval or assistance of local law enforcement.

Most, though not all, jurisdictions allow "Benevolent Trespassing" for extreme situations. For example, if you have a car accident and somebody is injured, you may legally enter/use the property to secure help. The law assumes people will make a reasonable effort to notify property owners if possible. Similarly "Good Samaritan" laws take precedent over property laws where applicable. Civilians are afforded certain protection in emergencies - people cannot generally sue their would-be rescuers for breaking ribs attempting CPR, or damaging property while helping a person in need. Obviously, professionals (EMT, Doctors, etc) are held to a higher standard, even when they're not "on the clock."

Property owners may allow some trespasses while excluding others. For example a sign saying just "No Hunting" could conceivably allow hiking, snowmobiling, or bird-watching, but would give notice to hunters that they would be trespassing if they entered onto the property.

Trespass is not limited to human beings. For example, the owner of cattle or dogs may be responsible for an animal's trespass in some jurisdictions.

Types

Trespass to land

Trespass to land is a common law tort that is committed when an individual intentionally (or in Australia negligently) enters the land of another without lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.

For trespass to be actionable, the tortfeasor must voluntarily go to a specific location, but need not be aware that he has entered the property of a particular person. If A forces B against his or her will onto C's land, C will not have action in trespass against B, because B's actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be jointly liable with B for B's trespass.

In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia, negligence may substitute the requirement for intent. Thus in that country, if a person trips and rolls upon the land of another, for want of due care, he or she would likely be found to have committed trespass.

If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a remedy, and may even forfeit certain property rights.

Trespass may also arise upon the easement of one person upon the land of another. For example, if A grants B a right to pass freely across A's land, then A would trespass upon B's easement by erecting a locked gate or otherwise blocking B's rightful access.

The maxim "cuius est solum, eius est usque ad coelum et ad infernos" (whoever owns the land owns it all the way to the heavens and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). The courts have been more lenient with underground trespass. The Kentucky Court of Appeal in Edwards v Sims 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reticent to do so in Di Napoli v New Beach Apartments (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.

There may be regulations that hold a trespasser to a higher duty of care, such as strict liability for timber trespass (removing trees beyond a permitted boundary), which is a type of trespass to chattels as a result of a trespass to land.

Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner's quiet enjoyment of his rights, there may be an action for nuisance, as where a disagreeable aroma or noise from A drifts across the land of B.

As with other intentional torts, the defenses of necessity and consent are available for trespass to the person.

Other Instances

• Assault and battery are trespasses to the person and actionable in tort as such.
• The unlawful interference with the goods of another is a trespass against his goods, and actionable in tort, usually as conversion or detinue.
• Actions for breach of contract was developed by the common law courts out of trespass and came to be called trespass upon the case.

A sign warning against trespassing at Mater Dei High School in New Jersey

Prevention

The front entrance of Whitwell Station, Reepham, UK, displaying some of the anti-trespassing techniques deployed.

There are many methods land owners use to prevent trespassing, usually depending on the terrain, risk, importance (personal, cultural or economic) and size of the property.

Some of the most common are also the most basic - barbed wire, warning signs and fencing.

Marking property as private property can be done in a variety of ways. The most obvious way is to put up a sign saying "No Trespassing" or "Private Property." However, a continuous fence has the same effect in most places. Many jurisdictions allow the use of markers when fencing would be impractical or expensive. For example, Ontario, Canada allows the use of red paint on landmarks such as trees to mark the boundaries of private property.

Rights of way (UK)

In the United Kingdom, public rights of way are paths on which the public have a legally protected right to pass and re-pass. The law differs in each of the constituent countries of the kingdom: notably, in England and Wales rights of way only exist where they are so designated (or are able to be designated if not already); in Scotland, meanwhile, any route that meets certain conditions is defined as a right of way, and in addition there is a general presumption of access to the countryside. Private rights of way or easements also exist.

England and Wales

Footpaths

Kissing gate with yellow footpath markings

In England and Wales a public footpath is a path on which the public have a legally protected right to travel on foot. Public footpaths often form a dense network of short paths, offering a choice of routes to many different destinations. It is probable that most footpaths in the countryside are hundreds of years old or more.

Footpaths are shown as dashed green lines on Ordnance Survey 1:25,000 maps, or dashed pink lines on 1:50,000 maps.

The Ordnance Survey maps cannot be treated as the definitive description of rights-of-way and they often take some years to be updated with changes.

Local Authorities (usually County or Unitary Authorities) are required to maintain the definitive map of all public rights of way in their areas and these can be inspected at Council Offices. If a path is shown on the Definitive Map and no subsequent order (e.g. a stopping up) exists then the right of way is conclusive in law. But just because a path is not on that map does not mean that it is not a Public Path. The Countryside Agency estimated that over 10% of public paths were not yet listed on the definitive map. The Countryside and Rights of Way Act of 2000 provides that paths that are not recorded on the definitive map by 2026 and that were in use prior to 1949 will automatically be stopped up on 1st January 2026. There is therefore obviously a need to seek out and record these paths.

A public footpath is sometimes waymarked using a yellow arrow on a metal or plastic disc or by yellow paint dots on posts and trees.

According to the Bedfordshire website[1], it is a civil wrong to ride a bicycle or a horse on a public footpath, and action could be taken by the landowner for trespass or nuisance by the user.

The site also mentions that walkers may:

• Take a pram, pushchair or wheelchair, where possible.
• Take a dog as long as on a lead or under close control.
• Admire the view, stop for a rest, have a small picnic on the verge
• Take a short alternative route to get round an obstruction

Permissive path

A permissive path, or permitted path, is a footpath where the public does not have a legal right to travel, but where they have been granted permission to do so for the time being.

File:NY0612 bridleway.jpg

Bridleway marker

Cyclists on a bridleway

File:P5100426.JPG

Footpath sign

Bridleways

A public bridleway is a way over which the public have the following, but no other, rights:

• to travel on foot and
• to travel on horseback or leading a horse, with or without a right to drive animals of any description along the way,
• to ride a bicycle (but, in exercising that right, cyclists must give way to pedestrians and persons on horseback).

Note that although Section 30 of the Countryside Act 1968 permits the riding of bicycles on public bridleways, the act says that it "shall not create any obligation to facilitate the use of the bridleway by cyclists."

Public Bridleways are shown as long green dashes on Ordnance Survey 1:25,000 maps, or long pink dashes on 1:50,000 maps.

In addition, permissive bridleways are shown as dashed orange lines on the 1:25,000 maps where there is no statutory right of way but where the landowner permits use, for the time being, as a bridleway.

A public bridleway is sometimes waymarked using a blue arrow on a metal or plastic disc or by blue paint dots on posts and trees.

Byways open to all traffic

A byway open to all traffic, or BOAT, is a highway over which the public have a right to travel for vehicular and all other kinds of traffic but which is used by the public mainly for the purpose for which footpaths and bridleways are used. (United Kingdom Road Traffic Regulation Act 1984, section 15(9)(c), as amended by Road Traffic (Temporary Restrictions) Act 1991, Schedule 1).

A byway open to all traffic is sometimes waymarked using a red arrow on a metal or plastic disc or by red paint dots on gateposts or trees.

Roads used as public paths

A road used as public path (RUPP) was one of the three types of public right of way (along with footpaths and bridleways) introduced by the National Parks and Access to the Countryside Act 1949. The Countryside Act 1968 required all highway authorities to reclassifiy RUPPs in their area – occasionally as public footpaths but in practice generally as public bridleways unless public vehicular rights were demonstrated to exist in which case it would become a Byway Open to All Traffic.

This process was slow as it involved research into historic usage and often public enquiries, and so was not completed by the time the Countryside and Rights of Way Act 2000 was passed. This reclassified all remaining RUPPs as Restricted Byways on 2 May 2006.

Restricted Byways

On 2 May 2006 the Countryside and Rights of Way Act 2000 reclassified all remaining Roads Used as Public Paths as restricted byways. The public's rights along a restricted byway are to travel:

• on foot
• on horseback or leading a horse
• by vehicle other than mechanically propelled vehicles (e.g. bicyles, horse-drawn carriages)

"Right to roam"

Under the Countryside and Rights of Way Act 2000 the public also has a right to walk away from rights of way on designated "access land." This right is in addition to rights of way, and does not extend to horseriders or cyclists. Access land may be closed for up to 28 days per year, whereas rights of way must remain open at all times, except in exceptional circumstances with special permission of the local authority.

Creation of new public rights of way

In England and Wales, a footpath or bridleway may be expressly dedicated by the owner as a public right of way. However, unchallenged use by the public, as of right, for at least 20 years, may give rise to a presumption of dedication under Section 31 of the Highways Act 1980. And a presumption of dedication may arise under common law after any appropriate period of time.

Scotland

In Scotland a right of way is defined as any defined route over which the public has been able to pass unhindered for at least 20 years. The route must link two "public places," such as villages, churches or roads. Unlike in England and Wales there is no obligation on Scottish local authorities to signpost or mark a right of way. However the charity Scotways, formed in 1845 to protect rights of ways, records and signs the routes.

There is no legal distinction between footpaths and bridleways in Scotland, though it is generally accepted that they may follow rights of way with suitable surfaces.

The Land Reform Act (Scotland) 2003 established a general presumption of access to all land in Scotland, making the existence of rights of way less important in terms of access to land in Scotland.

Debate

While property laws around the world are fairly clear, there is still a legitimate debate as to whether or not the laws themselves are legitimate. Certain sects of naturalists argue that one cannot own anything on the planet. These people argue that personal property is unnatural and can only lead to conflict as people fight over natural resources. Karl Marx and Jean-Jacques Rousseau both believed that man was ruined as the result of personal property. [True] communists believe that all property should be held in common among members of a society. Many Native American tribes also had no concept of private property, which sadly resulted in exploitative exchanges with European settlers such as the island of Manhattan for a collection of beads.

References

ISBN links support NWE through referral fees

• Anderson, Terry L. and Fred S. McChesney (Editors). 2003. Property Rights: Cooperation, Conflict, and Law. Princeton University Press. ISBN 0691099987
• Kantor, Shawn Everett. 1998. Politics and Property Rights: The Closing of the Open Range in the Postbellum South. University of Chicago Press. ISBN 0226423778
• Schmiege, Glen. 2005. Posted, Property Rights, Trespass, and Recreational Land Use in Michigan. Protar House. ISBN 097209105X

External links

• Information explaining rights of way from Bedfordshire County Council
• Photographs of some RUPPs at the British Geograph project
• Photographs of some Byways at the British Geograph project
• Photographs of some UK bridleways at the British Geograph project
• Bridleways.co.uk — a database of national routes suitable for horse riders
• Countryside and Rights of Way Act 2000
• Rights of Way Act 1990
• Scotways - The Scottish Rights of Way Society

Credits

New World Encyclopedia writers and editors rewrote and completed the Wikipedia article in accordance with New World Encyclopedia standards. This article abides by terms of the Creative Commons CC-by-sa 3.0 License (CC-by-sa), which may be used and disseminated with proper attribution. Credit is due under the terms of this license that can reference both the New World Encyclopedia contributors and the selfless volunteer contributors of the Wikimedia Foundation. To cite this article click here for a list of acceptable citing formats.The history of earlier contributions by wikipedians is accessible to researchers here:

• Trespass  ^history
• Trespass_to_land  ^history
• Rights_of_way_in_the_United_Kingdom  ^history

The history of this article since it was imported to New World Encyclopedia:

• History of "Trespass"

Note: Some restrictions may apply to use of individual images which are separately licensed.