disputing what you may believe about California TRESPASS LAWS

[geolover]

Last week I got a few replies/warnings about trespassing on other peoples' property, so I checked things out for myself. In CA, IN GENERAL, there are three levels of trespass. An infraction, which I am mostly talking about. A misdemeanour (criminal trespass), which includes taking soil, rocks, etc, but mostly about not leaving after being asked. And aggravated" (felony) trespass.
First I read about what defines a misdemeanour. Basically occupying a property, not leaving after being asked, taking items including soil-rocks, passing through a fence or no trespassing signs (properly displayed).

Here is the legal definition of trespass (at the infraction level): California Penal Code Section 602.8 (a) Any person who without the written permission of the landowner, the owner's agent, or the person in lawful possession of the land, willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands, is guilty of a public offense.
(b) Any person convicted of a violation of subdivision (a) shall be punished as follows:
(1) A first offense is an infraction punishable by a fine of seventy-five dollars ($75).
- See more at: California Penal Code - PEN § 602.8 | FindLaw California Criminal Trespass & Trespassing Laws | Penal Code 602 PC

The land I'm talking about is uncultivated, not fenced, and does not have signage (three to a mile). As a matter of fact, there are no signs on most of these properties, and is not occupied, just wide open space. I'm not taking anything, just hiking, checking things out like the mind shaft that I found. http://www.treasurenet.com/forums/g...ula-ca-vail-lake-i-found-something-today.html

Obviously, people are going to challenge my interpretation of PC 602. But if you are, please provide specific CA law. It's not that I have to be right or that I challenge everything people tell me. This is how I learn, I don't just take someone's word or advice and apply it, I research it for myself. I remember researching this a while back when I was curious about protecting my 20 acres.

So let the conversation begin, maybe you'll bring up a good point to debunk my beliefs. Good chance I'll learn something either way.



Closely Associated Crimes with Criminal Trespass include:
PC 601(a) Trespass - threat of serious bodily injury;
PC 602(a) Trespass - remove timber of another;
PC 602(c) Trespass - injure or sever produce
PC 602(d) Trespass - remove soil or stone
PC 602(e) Trespass - dig/remove stone of street
PC 602(f) Trespass - damage/destroy highway sign
PC 602(h)(1) Trespass - injure farm animal
PC 602(i) Trespass - damage fence/gate/signboard
PC 602(k) Trespass - intent to interfere with business
PC 602(m) Trespass - enter & occupy property
PC 602(n) Trespass - drive vehicle on private property
PC 602(p) Trespass - enter closed lands
PC 602((q) Trespass - refuse or fail to leave building
PC 602(r) Trespass - ski in closed area
PC 602(s) Trespass - refuse to leave hotel/motel
PC 602(t) Trespass - enter or refuse to leave property
PC 602(w) Trespass - refuse to leave women's shelter
PC 602(x)(2)(c) Trespass - maternity ward
PC 602.5(a) Trespass - unauthorized entry of dwelling
PC 602.8(a) Trespass - fenced area or posted land
PC 602.13 Trespass enter into animal enclosure at zoo
PC 602.9(b) unlawful renting of residential dwelling
PC 602.10 Obstruct teacher/student at college

 

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[Jason in Enid]

Yeah buddy, try to explain the law to the guy with a rifle leveled on you, or to the sheriff arresting you for trespass.

If it's not your land, STAY OUT. Seriously, how hard is that to understand?

 

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[Asmbandits]

I can say having owned rural land that there there are two ways it usually can go for the most part and it all depends on the situation. Sometimes we leave our gate open an sometimes we don't, our property is only fenced and posted in areas where access is from roads or travled trials etc where it needs to be. If you access the property from areas not fenced it means you accessed from joined nf and possibly missed the posted signs, which is understandable but obvious given the circumstances you went out of your way quite a bit to end up where you are on private land. We take less kindly to this type of trespass, usually hunters that know what they are doing and people that just shouldn't be there so the reaction could be more severe. It had been the case that truly lost hikers have ended up in the property but it is rare, and is originally met with suspicion like situations above. Then you have the occasional people walking or driving in past the gate who either stop and announce themselves usually saying sorry and turning around not realizing where they were for whatever reason and not returning, or someone in need of help. These situations are normal rural living and are handled as so in a much more civilized and less defensive manner. Keep in mind our property is over 100 acres and only 20 show any sign of life, the rest look just as the surrounding forest, yet it's joined to the homesteaded land with no boundaries. So if you come strolling down the main road in, run into me and politely turn around after I polity inform you your on private property it would surely go much better for you than if I was checking out the land and noticed someone snooping around my land for whatever reason while also being a liability in some instances.

I do know that mineral rights are sometimes owned by the property owner as well, just can't remember if it would only show up as private land or show claimed on private land on say mylandmatters. So could possibly be that mineral trespass could very well come into play.

 

[Clay Diggins]

Hi geolover, thanks for inviting me over. You've presented some good information there about criminal trespass in California!

I think mineral trespass and the criminal implications were discussed on the Any info about mine(s) near Temecula, Ca- Vail lake? I found something today. thread.

What I didn't see there was any suggestion that walking on the private land there was criminal trespass. I hope you didn't think that myself or anyone posting there was call you a criminal? I reread the thread and I didn't see that anywhere.

I did suggest in my own post on that thread

If you are going to continue exploring (and I encourage you to do so!) please study at least the land status before you go on the land. It's your legal duty and some folks get a little upset when they find someone trespassing on their personal patch of desert.

Nothing about being a criminal in there that I can see. I'm sorry if you misunderstood.

My point was you might be concerned about common law (civil) trespass when crossing their land geolover. In California that could be a civil (not criminal) complaint and a suit against you. It's not a crime to commit an incidental trespass on unmarked land in California, as far as I know, but it is a tort that can cost you a lot more than the fine for misdemeanor criminal trespass.

In California common law trespass doesn't have to be a direct injury to the land owner:

The distinction between direct and indirect invasions is not recognized in this state. In Coley v. Hecker, 206 Cal. 22, 28 [272 P. 1045], it was said that the "trend of the decisions of this court is generally in accord with the doctrine, whenever the question has come before it, that trespasses may be committed by consequential and indirect injuries as well as by direct and forcible injuries."

So the question becomes did you indirectly cause damage to the land owner when you walked across his land. Let's look at what the California law on trespass damage claims is:

Restatement of Torts Section 158:

"One who intentionally and without a consensual or other privilege
"(a) enters land in possession of another or any part thereof or causes a thing or third person so to do ... is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests."

"One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest.

To come within the rule stated in this Section, the conduct of the actor either must involve an unreasonable risk of invading the possessor's interest in his exclusive possession of the land or some other interest connected therewith or must be caused by an extra hazardous activity carried on by the actor which, although carefully carried on, involves a risk of invading such an interest.

So you are probably OK... right? After all you didn't damage the land owners property or rights in property - their "legally protected interests"? Maybe you did.

Lets look at this from the landowners perspective for a moment to see what they might use empty land for and how they could have a legally protected interest that you violated just by walking through.

Here's the very first thing written in the California Constitution. Right up front Article I Section I says:

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS


SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

The first absolute right of Californian's is to own possess and protect private property and a separate and equal right to purse and obtain privacy. Privacy is obviously a "legally protected interest".

So you are OK because they weren't there so you couldn't have invaded their privacy... right? Maybe not.

I think you would agree that people have rights to do things in private that can't be done in public. I can think of several. I think you would also agree that people who rightly do these things that are only legally done in private on their private property in a place out of view of the public might want to keep those places and things private.

Now imagine that some people might want to keep things private that are OK to do in public. Once you read that first Article of the Constitution do you have any doubt that people in California have a right to privacy of any legal kind they wish on their private property?

Are you going to be the one to argue they can't expect privacy for their literature collection, their dirty clothes or what's in their mine "shaft" on their protected private property? It sure looks like they have a right to just enjoy sitting in solitude - you know a reasonable expectation that their land rights include just being left alone? Inalienable rights.


Avoiding the Sheriff is one thing. Treating your neighboring landowners private property with respect is not only good practice but it avoids potentially violating their absolute right to expect privacy on their private property.

Trespassing in civil law is often the subject of lawsuits. Will you be sued for simply walking across your neighbors land? Probably not. Then again I don't know your neighbor and neither do you. As you can see there is that possibility in the law of trespass.

Don't be afraid to approach private landowners about walking on or even exploring their property. You might just be surprised at the results. In your situation you would be making friends with you neighbor. Neighborly is a good thing to be if you plan on owning property there for long.

Thanks the invite and for the opportunity to help clear up the differences between criminal trespass and civil trespass.

Let's leave mineral trespass for another discussion OK?

Heavy Pans

 

[geolover]

Yes, unoccupied, uncultivated, unsigned (if that's a word in this context). So knowing that and reading the actual law, am I breaking the law? I don't want to confuse this conversation with morality, simply, am I breaking the law.

 

[Jason in Enid]

Yes, unoccupied, uncultivated, unsigned (if that's a word in this context). So knowing that and reading the actual law, am I breaking the law? I don't want to confuse this conversation with morality, simply, am I breaking the law.

YES!

 

[geolover]

I like you Clay Diggins! You don't just spout off some ideological belief, you do some research, you back up what you say. I/we can't get to the truth or facts on this query if we bring morality and opinions into the mix. That's a different issue.
I never took it that people were calling me a criminal, I understand that they were just giving good, honest advice (well, maybe not good/correct).
I can tell that you are a smart person (see how I didn't assume you were a guy), people respect you on this forum and for many reasons. I also know that you are smart enough that you wouldn't just take another person's work on face value, you go check it out for yourself. That is why you are so friggin' intelligent, that's why I like you.

By the way, I'm working around my house right now. I am going to re-read your post and thoroughly check it out (research) tonight, expext to hear from me.

 

[geolover]

Come on, don't answer a simple question with a simple yes, tell me why and back it up with some literal facts, laws, previous legal proceedings (which is what I'm going to research tonight, some legal PRESEDENT). We can't learn the truth based on speculation, hearsay or even opinions for that matter. I said the truth, not right,wrong or morals.

By the way, in regards to the mine shaft that I found last week. It is on private land, I am in the process of contacting the owner so that I can get permission to do some casual prospecting. I'm not a person who disrespects my neighbors or wants to challenge the law. I'm also the guy who loads trash from ilegal dump sites and brings it back to my property to dispose of properly. Sorry, don't know what that has to do with anything but it makes me look better.

 

[Clay Diggins]

Yes, unoccupied, uncultivated, unsigned (if that's a word in this context). So knowing that and reading the actual law, am I breaking the law? I don't want to confuse this conversation with morality, simply, am I breaking the law.

I'm thinking the California Constitution is law geolover. The RIGHT to privacy is pretty fundamental in law.

pssst I've been hanging out in your backyard watching you all day. Is that a problem?

See what I mean?

Heavy Pans

 

[geolover]

You are correct, but I'm talking about unoccupied property, and I check my hikes out before I go. I know where parcels start and end. Just hiking around, nothing disturbed or taken so mineral rights don't come into play.
I would respectfully leave a property if asked to do so.
I am in the process of contacting the property owner for permission to casual prospect, which by the way, I wouldn't have known about if I weren't leisurely hiking around. I've never come across a situation out here where someone takes issue with what I'm doing.

 

[geolover]

pssst I've been hanging out in your backyard watching you all day. Is that a problem?
No, because no one is home, no one occupies the property.
Cut it out Clay, I really am trying to get some work done around my house and you keep bringing up good arguments.

 

[SpecJet]

Yes, unoccupied, uncultivated, unsigned (if that's a word in this context). So knowing that and reading the actual law, am I breaking the law? I don't want to confuse this conversation with morality, simply, am I breaking the law.

I would say that simply walking onto someones private property that was not occupied, cultivated, fenced or posted would not constitute criminal trespass.
Once you go poking around though, that could be construed as intentional interference and that is criminal, regardless of whether or not you knew it was private property.

However, once you know that the property is private, then any trespass would be criminal.

As a prospector, before i walk onto any lands, I do research. With a few mouse clicks you can know instantly what the land status is.
Access to the information is readily available and there are no good excuses for not knowing before you go exploring.

 

[geolover]

Im no expert but I think mineral trespass is different, and if im not mistaken a federal offense. Might want to keep that in mind if lurking around any claimed land, also if you planning on trespassing land that is private property id be more worried about being hit with rock salt or worse than what the law may do.

There is no "current" claim on the property where I found the shaft, it was filed in 1977 and never renewed. I'm not worried about buckshot, from my experiences people are more inclined to ask if I found something or more currious about what I might be doing and not in a negitive way. They're more concernerned with motorcycles.

 

[Anduril]

Trespassing is trespassing, not sure what you want from the community here, its still illegal and your guilty of it if you do so.. I agree that in your situation it might not be that big of a deal compared to other crimes but not sure what you are looking for with this thread, morals are morals so not everyone share them but laws are different. If it makes you feel any better do what you do and keep it to yourself and hopefully you don't get caught.

I think the point you are missing is that it is NOT trespass unless the land owner takes certain, specified affirmative steps: such as fencing in the property, posting appropriate signs, and/or using the land to cultivate crops. Otherwise, you're just on the land, not trespassing on the land. Notice the difference.

That's not to say you should be on the land - only that it is not techincally "trespass" and a competent court would toss the complaint.
Not that anything is a sure bet, and why would you want to go through all the trouble when it's usually just as easy to ask permission?
Of course, some believe it is better to "act" first, and "ask" forgiveness later.

Me? Although I wouldn't seek out such situations, I also would have no qualms defending against folks (i.e., landowners) who haven't bothered to secure their legal remedies against trespass.

 

[Clay Diggins]

I think the point you are missing is that it is NOT trespass unless the land owner takes certain, specified affirmative steps: such as fencing in the property, posting appropriate signs, and/or using the land to cultivate crops. Otherwise, you're just on the land, not trespassing on the land. Notice the difference.

That's not to say you should be on the land - only that it is not techincally "trespass" and a competent court would toss the complaint.
Not that anything is a sure bet, and why would you want to go through all the trouble when it's usually just as easy to ask permission?
Of course, some believe it is better to "act" first, and "ask" forgiveness later.

Me? Although I wouldn't seek out such situations, I also would have no qualms defending against folks (i.e., landowners) who haven't bothered to secure their legal remedies against trespass.

I was rummaging around your garage last night when I noticed you hadn't posted the required signs.

There is a big difference between criminal trespass and civil trespass. That was the point of my previous post.

If you don't believe that someone can commit trespass without the property being properly marked I'll meet you in your backyard in about 8 minutes. I'll be the one in the black clothing, most of the rest of the people here are wearing street clothes. K?

Heavy Pans

 

[DizzyDigger]

This is very simple. If it's private property, and you don't own it, STAY OUT.

Could not have been said better. Ain't rocket science..

 

[geolover]

I think the point you are missing is that it is NOT trespass unless the land owner takes certain, specified affirmative steps: such as fencing in the property, posting appropriate signs, and/or using the land to cultivate crops. Otherwise, you're just on the land, not trespassing on the land. Notice the difference.

That's not to say you should be on the land - only that it is not techincally "trespass" and a competent court would toss the complaint.
Not that anything is a sure bet, and why would you want to go through all the trouble when it's usually just as easy to ask permission?
Of course, some believe it is better to "act" first, and "ask" forgiveness later.

Me? Although I wouldn't seek out such situations, I also would have no qualms defending against folks (i.e., landowners) who haven't bothered to secure their legal remedies against trespass.

Thank you Anduril,
yes, just like the law specifically discribes in its definition.

 

[geolover]

I was rummaging around your garage last night when I noticed you hadn't posted the required signs.

There is a big difference between criminal trespass and civil trespass. That was the point of my previous post.

If you don't believe that someone can commit trespass without the property being properly marked I'll meet you in your backyard in about 8 minutes. I'll be the one in the black clothing, most of the rest of the people here are wearing street clothes. K?

Heavy Pans

I keep explaining that I am referring to unoccupied land, no one lives there, no dwelling, no one to spy on. There is no garage to rummage through, no backyard to meet you in. Where's that little cartoon thingy with the guy beating his head against the wall, I need one here.

 

[DizzyDigger]

Geo: Although you've posted up the legal definitions of trespassing,
I still don't see your point.

You want to access property that is owned by an individual, and now
you're trying to find ways to justify doing so. Is it your goal just to see
if you can get away with it? With all due respect, that's what foolish
teenagers do, but by the time were adults we're supposed to know
better.

There is no profit in all this...it wastes your time and benefits no one.

 

[geolover]

Could not have been said better. Ain't rocket science.

You're right it's not rocket science, it's the law. Read, interpret and understand the actual, specific Penal code
Wait! are you really in agreement with me, you were actually being sarcastic, you were making fun of the other guy's comments, sorry I missed it. Right?

 

[DizzyDigger]

You're right it's not rocket science, it's the law. Read, interpret and understand the actual, specific Penal code
Wait! are you really in agreement with me, you were actually being sarcastic, you were making fun of the other guy's comments, sorry I missed it. Right?

Presumption is the Mother of all foul ups..

Reading Comprehension