Published as a service to Utah landowners by:
Utah Cooperative Wildlife Management Association
Utah Farm Bureau Federation
Utah State University Extension
Utah State University College of Natural Resources
Quinney Professorship for Wildlife Conflict Management
Jack H. Berryman Institute
Purpose of Guide
The purpose of this guide is to assist Utah landowners in better managing trespass on their property. It provides information regarding what landowners can legally do to protect themselves from trespass and what measures can be taken to increase the likelihood that a trespasser will be successfully prosecuted.
What is Trespass
A trespasser is a person who enters or remains upon or in possession of the land of another without the possessor's consent. To be legally guilty of trespass is to enter unlawfully on the land of another. In Utah, trespass may be prosecuted under two statutes; the Utah Wildlife Code 23-20-14, and Utah Code Annotated section 76-6-206.
The Utah Wildlife Code 23-20-14 states that "While taking wildlife or engaging in wildlife related activities, a person may not: (1) without permission of the owner or person in charge, enter upon privately-owned land of any person, firm or corporation., (2) refuse to immediately leave the private land if requested, or (3) obstruct any entrance or exit to private property.
In Utah, permission is legally defined within the wildlife code to mean written authorization from the owner or person in charge to enter private land that is properly posted. By law this written authorization must include the signature of the owner or person in charge, the name of the person being given permission, the dates for which permission is granted, and a general description of the property to which the permission is given.
Central to those definitions is the phase, "properly-posted." Although Utah law is specific in defining properly-posted, differing interpretations of his phrase by landowners trespassers, conservation officers, county attorneys, and he courts have complicated the issue. Because of these differing interpretations, known trespassers have not been prosecuted or they have managed to win their cases in court. This has contributed to reinforcing some landowners' perceptions that trespass is difficult to prevent. This situation does not serve to improve relationships between Utah landowners, he Division of Wildlife, and hunters.
Trespass may also be charged under the general criminal code, Utah Code Annotated Section 76-6-206, as an infraction rather than a class B misdemeanor. This statute requires he "posting of signs reasonably likely to come to the attention of intruders" or "fencing or other enclosure obviously designed to exclude intruders." A county attorney prosecuting a trespass case may fall back on this statute when there are concerns about whether the land was technically "properly posted" under the wildlife code, and as long as the trespasser should have reasonably recognized that his presence was unwelcome. Although the offense classification is an infraction, the justice courts may still impose substantial fines and order restitution for violations.
Trespass-Managing the Risk
Trespass is most frequently cited by landowners as the reason for not allowing hunters access to their property for hunting. Therefore, it is in the best interest of the landowner, state wildlife agency, and Utah hunter to cooperate in the addressing this difficult issue.
To encourage Utah farmers and ranchers to allow the public free use of the land for hunting and other recreational activities, the Utah Legislature has passed legislation protecting them. These laws have the effect of limiting he duty of care a landowner owes to a hunter or other outdoor recreationists (i.e., bird watchers, wildlife photographers, anglers, hikers, campers, etc.) providing no fee has been charged.
Duty of Care
As a general rule, landowners owe certain "duties and standards of care" to people that enter their land. This includes hunters and other recreationists. The degree of care required varies with the legal status of hunter or recreationist. The legal status is determined by such things as whether: (1) he land was properly-posted, (2) the landowner or person in charge was aware that people are on the land but does nothing, or (4) a fee was charged to access the land.
A landowner owes no duty of care to keep the premises safe for the use of others if a fee was not charged for allowing to access the land. Landowners also have no duty to warn people who were not charged an access fee to enter the land, of the conditions or activities existing on the land. This does not include willful or malicious failure to warn against dangerous conditions. For example, failing to inform an individual about an open, uncovered well or similar hazard may constitute willful and malicious behavior on the part of the landowner.
Correspondingly, a person accessing private land for the purpose of hunting or other recreational activities also has an obligation while on the land to exercise care in the use of he land. This would apply in cases where a landowner consented to others hunting or recreating on private land or where he was aware that people were hunting and did nothing.
If, however, a landowner receives economic benefit by charging a fee to come on his land, he has a duty to make the premises safe or to post signs pointing out potential hazards. There is consistent with general law and the Limitation of the Landowner Liability Act enacted in Utah, Limiting a landowner's liability where no charge is made.
What About Trespass?
The duty of care owned by landowner or person in charge to a trespasser is to refrain from willfully, maliciously or recklessly injuring them. In other words, a landowner or person in charge cannot set traps for trespassers. A trap is a hazard that is known to the landowner or person in charge, but concealed to others. If a trespasser is injured by a trap, the landowner is open to liability for the injury, even though the trespasser violated he law by trespassing. The following have been held unlawful traps for which the landowner can be held responsible: (1) setting a spring gun, (2) creating obstacles on a public roadway, (3) installing a cable gate across a private road known to be used by he public. To reduce he liability risks for #3, the road should be posted as private access. If a cable or chain is used o close a road, it should be flagged with brightly colored flags or other materials.
What about Leased Lands?
In Utah, private land are regularly leased by others for recreational purpose such as big game hunting under the Cooperative Wildlife Management Unit Program (23-23-6, Utah Division of Wildlife Regulations R657-37). On leased lands, if a trespasser, licensee or invitee is injured, who is liable-the landowner or the lessee? Traditionally, the lessee has had he burden of maintaining the land in a reasonably safe condition to protect persons that enter the land. When land is leased, he lease is regarded as equivalent to the sales of the premises for the purposes specified in he lease for its duration. Therefore, as a general rule, the landowner is not liable to the lessee or to others injured while the land is leased.
There are, however, some exceptions to this rule. For instance, the landowner may be liable when there is: (1) undisclosed danger known to he landowner and unknown to the lessee, (2) land is retained within the lease area for similar joint use, (3) an agreement by the landowner to repair a condition, and (4) negligent repair by the landowner. Unless the liability of the landowner arises from a defective pre-existing condition under one of these exceptions, the landowner should no incur liability.
Landowner and Lessee Rights with Respect to Trespassers
Trespass can be a very difficult problem to handle. Many landowners may feel that law enforcement officials do no provide adequate protection from trespassers. Out of this sense of frustration, landowners may choose to ignore repeat trespassers. Unfortunately, the landowners knowledge of continued trespass by a person and the failure to take action may be interpreted by the courts as the landowner giving the trespasser implied consent.
The situation however, is not as hopeless as it sounds. There are several steps you as a landowner or lessee can take to protect yourself and your property. These include:
1. Properly post boundary signs and diligently prosecute violators. While the state owns all resident birds, fish and wild animals, a landowner or lessee may control hunting on land which he or she owns or rents.
Generally, permission to hunt on the land of another is presumed in Utah unless the land is properly posted. A landowner must post his or her land properly if he or she does not want hunters or other recreationists to enter. This means that "no trespassing" signs or a minimum of 100 square inches of bright yellow or flourescent paint are displayed at all corners of the property, at fishing streams crossing property lines, roads, gates, and rights-of-way entering the land. If metal fence posts are used, the entire exterior side must be painted.
If you are participating in Utah's Cooperative Wildlife Management Unit Program, the unit must be clearly posted at all boundaries and all corners, roads, trails, gates, and right-of-way entering the unit with signs provided by the Utah Division of Wildlife Resources.
2. Properly posted land gives notice to hunters and others that no trespassing or hunting is permitted or that hunting is allowed by express permission. "Permission" means written authorization from the owner or person in charge to enter upon land that is properly posted and must included:
(i) the signature of the owner or person in charge;
(ii) the name of the person being given permission;
(iii) the appropriate dates; and
(iv) a general description of the property.|
If you give permission, make it very clear that permission is being given only for the person named on the written permit.
3. Interview every applicant yourself. This is too important to leave to others. The Division of Wildlife Resources has a Hunter Safety and Education course that instructs hunters on gun safety, courtesy to landowner, survival skills and ethical sportsmanship among other issues. Graduates of this course receive a certificate that you can request to see. This is an excellent program and may aid in your decision to grant hunting permission.
4. Plainly mark and show the safety zones around houses and buildings.
5. Indicate, on a map, areas open for hunting, roads which may be used, etc.
6. Have a set of carefully thought-out rules that you enforce; go over them with the hunters, and withdraw privileges from violators. Each landowner who grants permission will need a set of rules which are applicable to their situation. The following are suggestions for consideration:
a. Have it understood that all state and federal game regulations will be obeyed.
b. Require any hunters or other recreationalists who enter your land to report trespassers, damage to property and trespass signs.
c. Don't allow people under the influence of alcohol to hunt.
d. Clearly state how you wish gate and fences to be handled. For instance, gates should be left open if found open, shut if found shut; fences that should not be climbed or used as target practice.
e. List the species which may be taken and those which should be left alone.
f. Make it clear that unsportsmanlike conduct will not be tolerated.
The last pages of this brochure contain copies of a simple courtesy hunting permit that can be used to grant a person written permission to hunt on privately property. Additional conditions could be added to the permit as desired.
Document Your Efforts - Just Posting You Land May Not be Enough
Unfortunately, just posting your land may not be enough to prevent trespass. Repeat trespassers have become very sophisticated at this activity. The trespass (getting away with it) for some may become as exciting as the hunt itself. Trespass signs have a way of disappearing and repeat trespassers seem to have a knack for finding those odd corners to access properties.
To further protect yourself against trespass, once your property is posted it is a good idea to document you efforts with photographs or on video tape should clearly show the posting relative to landscape efforts.
What to Do When You Encounter a Trespasser
If you encounter a trespasser, there are some things you can and can't do. What you do or how you handle the situation may influence whether or not you will get a prosecution.
If you encounter a trespasser DO:
1. Ask the trespasser to leave. You may ask for a name and a license number.
2. Call the nearest law enforcement official.
3. Document the situation by photographing or video taping trespassers, their activities, their vehicle, and points of entry relative to your posting.
4. In the case of a repeat trespasser, consider sending the individual(s) a letter by certified mail informing them that if they are caught trespassing you will pursue prosecution under Utah trespass laws as well as in civil courts for any damages. Include in the letter, a map of your farm and ranch that clearly defines your property boundaries. You may wish to consult an attorney versed in ranch law to help you draft and send this letter. Often a letter from an attorney will serve as additional notice of your resolve to prosecute.
If you encounter a trespasser DO NOT:
1. Force them off your land with threats of physical violence or at gunpoint.
2, Confiscate their property to include driver's license, rifles, equipment, or vehicles.
3. Physically detain them.
4. Request money or materials goods from them in return for not prosecuting them. Remember, if your property is not proven to be properly posted in court, you could open yourself up to additional charges by these actions. Any attempts to do any of the above may end up in you being prosecuted for assault, battery, false imprisonment and theft of property.
Lastly, remember if there were to be violence in a confrontation between a landowner and trespasser, the landowner may not enjoy the protection of the law if force was used. The legality of the force would be determined by what was reasonable necessary. Law enforcement officers can do far more for a landowner with a good description and license plate number than with a pair of angry people.
Prosecuting a Trespasser
A trespasser may be prosecuted under Utah Wildlife Codes or Utah Burglary and Criminal Trespass Codes. Under Utah Wildlife Codes it is unlawful to hunt, fish, and trap or engage in wildlife activities on property-posted land without permission. Under Utah Burglary and Criminal Trespass Codes it is unlawful for a person(s) to enter or remain on land if they know they are not authorized to be there and do so in defiance of orders communicated to them by the landowner or his representative or the property is properly posted. Under both statutes it is a crime for the person to be on properly-posted land without permission or if they fail to leave after being asked to do so.
In addition, you may bring a civil action suit against the trespasser or file a complaint with the county attorney against the trespasser. If a civil action is brought and won, the trespasser could be required to pay the landowner or lessee for all injury resulting from the trespass. Such damages may include the access fee he landowner normally charges hunters. Punitive damages, above and beyond the actual damages, may also be recovered.
A person who is hunting on land that is enrolled in Utah's Cooperative Wildlife Management Program must hold the valid permits to hunt he unit. These units are considered limited entry hunt units. If an individual enters onto a properly-posted unit for the purpose of hunting and does not have a valid permit, that individual is guilty of the crimes of trespass and hunting without a proper permit. If they harvest an animal on the unit, they are guilty of the crime of illegal taking and possession of wildlife.
The fact that you actively seek prosecution of trespassers will send a message to others that you are serious about trespass. This message may do more to prevent future situations than anything else you do.
COURTESY HUNTING PERMIT
To whom it may concern:
The bearer of this permit,__________________________________ , has permission to hunt on the following property:__________________________________ , located at___________________________(Name of Farm, Ranch) during the period ________________________.
He (she) agrees to obey the current State and Federal hunting regulations and to repair or pay for any property damages which he (she) may cause.
UDWR Hunter Safety Education Number:_________________
Vehicle License # : __________________________
Vehicle Description: _____________________________________
Signature of landowner or person in charge: ______________________________
Signature of permittee: _____________________________
Note: Utah law (57-14) frees the landowner from all liability if a nonpaying guest is injured unless the injury results from willful or malicious failure to guard or warn against dangerous conditions, use, structure, or activity.
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