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TRESPASS! by:
Clifford H. Bloom There
are two types of trespass and related legal remedies - criminal
trespass and civil trespass. Criminal trespass is what most lay people
think of when they consider pursuing legal action against someone for
trespass. There are potentially three laws available whereby a
trespasser can be prosecuted. First, under state law, trespass is
illegal pursuant to several statutes. MCLA 750.552 is the general
state statute for trespass. This statute prevents anyone from
trespassing upon the premises of another after having been forbidden
to do so. Violation of the statute is a criminal misdemeanor offence,
punishable by a fine of up to $50.00 and 30 days in jail or both.
There are also several statutes which make it illegal to trespass and
to damage property, cut trees, destroy or take crops, etc. Under such
statutes, someone who is found guilty of entering the Land of another
without permission and destroying property is potentially liable for
actual damages, and in some cases, even double or triple damages. See
MCLA 600.2919,750.546 and 750.547. Second, some local municipalities (ie.
cities, villages or townships) have their own trespass ordinances.
Finally, the Michigan Recreational Trespass Act (MCLA 324.73101 et
seq.) ("RTA") covers trespass involving recreational uses.
Depending upon the statute under which a trespasser is prosecuted,
conviction can either constitute a criminal misdemeanor or civil
infraction offense. The RTA was also amended recently to add
"teeth," such that the penalties have been beefed up
significantly. Unfortunately,
many police agencies (i.e. county sheriff departments, city police
officers, etc.) and prosecuting officials (i.e. county prosecutors,
city or township attorneys, the Michigan Attorney General's office,
etc.) are reluctant to prosecute trespassers—it is simply not a high
priority in most jurisdictions. Many law enforcement officials will
tell a complaining property owner that they cannot prosecute a
trespasser until the offender trespasses a second time. Although under
most laws it is not technically true that someone has to trespass a
second time before they can be prosecuted, it is true that most laws
require some type of prior notice. For example, MCLA 750.552 requires
that the trespass occur after the trespasser has been "forbidden
to do so by the owner or occupant" or that the trespasser
neglects o r refuses to leave when requested by the owner or occupant
. The RTA requires that a property be posted with no trespassing signs
or at least be fenced prior to a violation occurring but it does not
require any other notice to the trespasser. Some local ordinances do
not require any prior notice at all. There are other reasons why law
enforcement agencies are often reluctant to prosecute trespassers.
First, trespass claims have unfortunately been used as fodder in
domestic and neighborhood disputes. Second, it is often difficult for
law enforcement officials to determine whether someone has trespassed
due to uncertainty about boundary lines - this is particularly true
with regards to bottomlands under a Lake or upland boundary lines
which are in dispute. Third, such disputes often involve one person's
word against another's - the offender claims that he or she was given
oral permission to be on the property while the owner denies that such
permission was given. Such disputes are often viewed as more civil law
matters with which law enforcement should not become involved. The
other remedy for trespass is a civil lawsuit. In such cases, law
enforcement agencies are not involved and the individual property
owner must file a lawsuit against a trespasser at his or her own
expense. In some cases, the property owner can recover damages, even
where little harm has been done to the property involved. See the RTA
and MCLA 600.2919,750.546 and 750.547. In most civil lawsuits for
trespass, however, damages are rarely awarded, and the goal of the
property owner is to obtain a court order precluding the offender from
trespassing again under pain of contempt of court and possibly jail. Around
Lakes, the issue often arises as to whether it is trespassing on a
riparian's bottomlands when someone else places a dock, shore station
or raft anchor on the riparian's bottomlands or walks on the
riparian's bottomlands without permission. Under Michigan law, most
riparian property owners own the bottomlands adjacent to their
properties toward the center of the lake in a pie-shaped fashion.
While both riparians and members of the public have the right to freely
float on the water over another's bottomlands and even to temporarily
anchor thereon pursuant to navigation, people do not have the right to
place docks, shorestations or raft anchors on the bottomlands of
another without permission, or to moor boats other than temporarily on
such bottomlands. Furthermore, one cannot normally walk on the
bottomlands of another without permission. Unfortunately, law
enforcement agencies will almost never prosecute bottomlands trespass
cases due to their lack of knowledge of riparian law and the
difficulty of ascertaining bottomlands boundaries. Only a county
circuit court in a full-blown civil lawsuit can determine true
bottomlands boundaries, which is an expensive and complicated process.
Accordingly, the ultimate relief for the owner of bottomlands who
experiences bottomlands trespassing is a private civil lawsuit. The various trespass laws differ
regarding whether or not a property must be posted before a trespasser
can be pursued. The RTA requires signage at every visible point, or,
alternately fencing Some local ordinances do not require any signage
or fencing while others do. To be safe, it is best to post your
property, utilize fencing or use both methods if you are concerned
about trespassing. If you are dealing with a relatively small lot, a
confined area or lake bottomlands where fencing or posting is not
practical, either you or your attorney should send a warning letter to
whomever has been a trespasser in the past warning that person not to
trespass or you will take appropriate legal action. Obviously, you
should keep a copy of the letter in your file and preferably send it
by registered mail to the potential trespasser so you can later prove
that he or she had prior notice if court action should be necessary. Here
are a few additional tips regarding trespass: 1 Once you have had a survey done (which
can be quite expensive), you may desire to dig a small hole around
each corner iron (without disturbing it) and pour a little redi-mix
cement into the hole, leaving a half-inch or so of the iron protruding
through the concrete. If you desire, you can place topsoil over this
cement and plant grass. This will ensure that corners do not get
moved, lost, bent, etc., so that your property lines will remain
established. 2 If someone trespasses on your property
and damages, cuts or takes your trees, crops, wood or other natural
resources without permission, they are potentially liable for triple
damages under MCLA 600.2919. The
Michigan Riparian |
