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No Trespassing | Fall 2011 Out Here Magazine

What are your legal rights against unwanted visitors? Depends on where you live.

By Noble Sprayberry
Photography by iStock

Anyone spotting trees or posts marked with purple paint in the Missouri woods must steer clear, thanks to a state law allowing landowners to rely on an eye-catching no-trespassing warning.

The paint job offers a colorful tool for a complex chore: applying law to property rights. And the task differs from state to state, often from community to community, which makes “Posted No Trespassing” a complex idea any property owner should consider.

When in doubt, a landowner should seek answers from the county extension office, the state department of agriculture, the state attorney general, or a personal attorney, advises Robert Achenbach, executive director of the American Agricultural Law Association, which focuses on the legal needs of the agriculture community.

But some themes do play out nationwide, particularly those surrounding fences and the idea of “posting” a property with no-trespassing signs to warn off would-be visitors.

Posting a property has no effect on general trespassing laws, which typically do not take into consideration whether a property has been posted. A trespasser is someone on the land without personal written or oral permission of the landowner, regardless of signage, Achenbach says.

A no-trespassing sign, however, can clarify an owner’s intent and plays into a legal trend that requires landowners to take reasonable care for anyone on the property.

For example, a landowner frustrated by trespassing snowmobiles may post the land and build fences, but stretching cables across trails without providing adequate warning could be trouble. A snowmobile rider injured by an unmarked cable could put the landowner in serious legal trouble.

Or, perhaps someone with a pond wants to offer paid fishing. Because youngsters are drawn to this potentially dangerous place, much like a swimming pool, it could be considered what is known in legal terms as an “attractive nuisance.” Therefore, it’s the landowner’s responsibility to keep trespassing children out, which may range from fencing the pond to contacting their parents.

The goal is to create a legal foundation showing that, if any accidents happen, they occurred despite the landowner’s best efforts to keep trespassing children away.

These hypothetical examples provide a sample of the types of issues property owners may face, and lawmakers do pay attention. The result is a patchwork quilt of laws and regulations.

While posting land offers one legal tent pole, issues surrounding fences provide another. A key point for a property owner would be determining if the land is legally “fence-in” or a “fence-out.”

In “fence-in” states, an owner of a cow that escapes from a poorly fenced pasture will face more liability for damages caused by the cow on a neighbor’s property than an owner with a well-maintained fence.

Places with a history of open rangeland, such as West Texas and some states, typically are often “fence-out,” putting the weight of responsibility on property owners to keep unwanted animals out. An owner of an escaping cow has no legal duty to contain the cow unless it breaks through an adequate fence on a neighbor’s property.

In either case it’s wise to follow the old saying, “Build your fences horse high, cattle tight, and pig strong,” Achenbach says.

Issues surrounding fencing, however, extend beyond livestock, and the type of fence can make a legal difference.

While a good horse fence topped by a live electric wire provides the best protection, a low barbed-wire fence offers much less. Overall, however, a fence creates a legal boundary that says, “Keep Out.” Much like the purple paint in Missouri.

Noble Sprayberry is a Georgia-based writer and frequent Out Here contributor.