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Are You Trespassing?

Thursday, June 21, 2012

What is trespass? Does property have to be fenced or posted? Where can I fish on a stream? Where can I float? What can be done to alleviate the problems?

"These are all good questions," said Missouri Department of Conservation Agent Daniel Shores. "Here are the answers."

What is trespass?

The most basic form of trespass simply is "when someone physically enters upon another's property."

Under the 1979 Missouri Criminal Code, there are two possible trespass violations in

Missouri.

Trespass in the first degree (569.140):

1. A person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.

2. The person does not commit the crime of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by:

1) Actual communication to the actor; or

2) Posting in a manner reasonably likely to come to the attention of intruders.

"A person must knowingly enter another's property to be guilty of first-degree trespass," Shores said. "Knowingly means 'intentionally' in legal terms. To be guilty of first-degree trespass, a person must knowingly enter the property, the property must be fenced or enclosed, or the property must be posted at frequent intervals.

"Trespass in the first degree is a class B misdemeanor; the penalty is a maximum of six months in the county jail and a $500 fine."

Trespass in the second degree (569.150):

1. A person commits the offense of trespass in the second degree if he enters unlawfully upon real property of another. This is an offense of absolute liability.

"If you unlawfully enter on anyone else's property," Shores said, "you could be guilty of second-degree trespass."

Trespass in the second degree is an infraction. It's punishable by a maximum $200 fine. Since it is a law of "absolute liability," land does not have to be posted or fenced. One doesn't even have to be aware that he is on someone else's property.

Trespass in the second degree becomes trespass in the first degree when a property-owner asks the trespasser to leave the property and the trespasser refuses to do so.

What is the

"open field" doctrine?

Law-enforcement officers may enter private lands such as fields and woods while performing certain public duties-which include enforcing fish, game and forestry laws-without being guilty of trespass.

What about fishing

Missouri's rivers and streams?

Public use of Missouri's float streams often causes conflict with private landowners.

Public access to Missouri's streams has been controlled since 1954 by Elder v. Delcour, a case decided by the Missouri Supreme Court.

Navigable rivers and streams are open to all legal use by the public and fall under the control and jurisdiction of the federal government. Case law defines a navigable river as "one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in customary fashion."

In the Elder v. Delcour case, the Missouri Supreme Court concluded that a public fishing right exists upon Missouri's small, floatable streams. The court ruled that since the ownership of the fish in the stream is vested in the public, the public has a right to fish and to take fish from the streams in a legal manner.

The court ruling held that persons floating or wading in the upper Meramec River, following legal entry into that stream, were not trespassing.

The ruling (Elder vs. Delcour) did not authorize trespassing to gain access to any stream. Persons who wish to recreate on any of these streams must access them from a public access point (public fishing access, county road right-of-way, etc.) or must have the landowner's permission to cross private property to get to the stream.

Recreational users may use the waters of public navigable and public non-navigable streams without being in violation of the trespass statutes of Missouri, even when the streams are going through privately owned property. In these streams, people are allowed to float fish (in accordance with applicable laws and regulations) and wade in these waters.

Users of these streams also have the legal right to carry boats around obstacles in the waterway where obstructions preclude the passage of their boats, subject to liability for damage they might inflict on the landowners' property. They must also take the "nearest path" around the obstruction and re-enter the stream.

Stream anglers are reminded that Missouri's stream black bass season opens on Saturday, May 26 and runs through the end of February.

This season, which applies to most of the streams in southern Missouri, allows anglers to keep some of the black bass that thrive in those waterways. Limits vary according to species and some designated stream areas have special restrictions.

What are the rights of landowners?

Private landowners should and do have the right to allow, limit or stop public use of their property. No one can force private landowners to allow the public to use their land.

Landowners posting their land with signs that say "Hunting by Permission Only" seem to experience a better relationship with sportsmen. The landowner still retains the right to refuse access to the public, but the signs don't seem as susceptible to vandalism.

Private landowners have the right to prosecute trespassers. Conservation agents or law enforcement officials cannot simply arrest someone for trespassing. The landowner must sign a complaint. Some landowners are reluctant to prosecute trespassing friends or neighbors, and others are afraid of retaliation if they decide to prosecute.

"Instances of retaliation are rare in Missouri," Shores said. "No one can tell a private landowner to prosecute, but landowners who prosecute seem to have fewer trespass problems.

"In some instances, trespass is a major problem for landowners and sportsmen, but it doesn't appear that way in the court system," he continued. "Trespass is a problem all sportsmen must face each year. I recommend hunters not be tempted to hunt or fish on land without the owner's permission. They shouldn't hunt or fish with others who trespass.

For more information about trespassing or to report a wildlife violation, contact Barry County Conservation Agent Daniel Shores at 417-229-4706 or Agent Dan Vanderhoef at 417-342-5579.



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