Montana Law?

[ridge-runner]

Hey everyone,

Did some digging around and this is what I found out.

Under Montana law, a trespass occurs when, "A person enters or remains unlawfully in or upon any vehicle, occupied structure, or premises when the person is not licensed, invited, or otherwise privileged to do so. " MCA 45-6-201. The basic common law is that "an owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath." Butler v. Frontier Telephone Co. The Montana Supreme Court found that even firing across someone's property is an act of trespass, agreeing with the concept that the ground is a guide, but not the full measure because land includes not only the surface but also the space above the surface too. Herrin v. Sutherland It seems then that with the Montana and common law theory, merely stepping over someone's land is still a technical act of trespass.

As to "playing dumb" as an excuse, anyone who trespass can still be issued the criminal citation. The Montana case State of Montana v. Blalock is about someone who was convicted of criminal trespass even when when he didn't cause any physical damage to the property owner. The Supreme Court stated that "Ignorance of the law has never been a defense in Montana" They held him accountable for the trespass.

The tough thing is that there is no clear instruction for us as hunters to follow. It seems if anyone has been cited with trespass corner hopping, they didn't fight it. Too bad, because it would be great to see where a Montana court stands on it. Basically, if a landowner wanted to press criminal charges for a corner hop, they could, and it doesn't matter how "slight" the trespass is.

Now, who wants to be the first person to fight the criminal trespass charge? Be my guest, I'll do the right thing

 

[Lawnboy]

Now, who wants to be the first person to fight the criminal trespass charge? Be my guest, I'll do the right thing

Like I mentioned earlier, My friend fought it in Park County and the attorney dropped the case. This may only apply to this county but I know for a fact that is what happened. I'v got to believe the same could happen in other counties as well.
Like you said who is willing to be the lamb to find out if it will or won't?

 

[ridge-runner]

Exactly, its a tough call for sure in the real world. My thoughts are there will be some more clarification when a corner hop occurs often at the same spot and the Landowner has enough.

 

[fishing4sanity]

SWMontana1, are you packing one out?

 

[Bambistew]

Like I mentioned earlier, My friend fought it in Park County and the attorney dropped the case. This may only apply to this county but I know for a fact that is what happened. I'v got to believe the same could happen in other counties as well.
Like you said who is willing to be the lamb to find out if it will or won't?

Big difference in dropping a case and losing an argument in court.

 

[the nikster]

How high does ownership extend? There's lotsa rich bastards flying over my piece of Alaska.

 

[Lawnboy]

Big difference in dropping a case and losing an argument in court.

The attorney told him that they will not prosecute corner hopping and then dropped the case. My point is that in this particular county you won't even make it to court.

Interesting read but still someone needs to take the legal plunge and see if it can be fought and won in higher courts. Not going to be me.

http://billingsgazette.com/news/sta...cle_0848ffe6-200c-11e1-8b59-001871e3ce6c.html

 

[noharleyyet]

Clear as mud...chickenchit to prohibit IMO.

 

[smarandr]

Could you corner hop if the property isn't posted? In Idaho you can't be cited for trespassing while hunting if the land isn't cultivated or "properly posted." Or does Montana law automatically protect property from trespassing without posting?

 

[Straight Arrow]

In Montana it does not require posting. It is up to hunters to know where they are.

Few, if any, corners are marked at all. That's part of the problem with even legalizing corner hopping.

 

[smarandr]

Very interesting, that would certainly change the way I hunt deer. I cross a few hundred yards of private property every year to get to my honey hole on USFS ground, but it isn't posted or cultivated. So, unless the landowner is on the property and tells me to turn back I'm perfectly legal.

 

[ridge-runner]

So, unless the landowner is on the property and tells me to turn back I'm perfectly legal.

Or doesn't have it posted, then you could argue you haven't criminally trespassed (MCA 45-6-201). But that's just criminal. Who knows where a civil lawsuit would go in this situation. Perhaps a court wouldn't hear it, but bad facts sometimes lead to the "wrong" outcome.

 

[belly-deep]

Or doesn't have it posted, then you could argue you haven't criminally trespassed (MCA 45-6-201). But that's just criminal. Who knows where a civil lawsuit would go in this situation. Perhaps a court wouldn't hear it, but bad facts sometimes lead to the "wrong" outcome.

Yep. Courts don't like litigants who acted in bad faith.

 

[Carrion Carrier]

I know a guy has been fined twice in the last two seasons for "checkerboarding" near Darby. I think the last fine was over $1,000. I would really like to see prosecution for this stopped. We have fenced parcels near my home where it's very easy to see where the corner is. Still, it's illegal to be caught on the landlocked parcel and the nearby landowners are watching!

 

[Carrion Carrier]

MT law is very clear that, in the case of hunting, it is up to the person to know where they are at all times. Land does NOT need to be posted.

 

[belly-deep]

MT law is very clear that, in the case of hunting, it is up to the person to know where they are at all times. Land does NOT need to be posted.

That's not quite true.

45-6-201. Definition of enter or remain unlawfully. (1) A person enters or remains unlawfully in or upon any vehicle, occupied structure, or premises when the person is not licensed, invited, or otherwise privileged to do so. Privilege to enter or remain upon land is extended either by the explicit permission of the landowner or other authorized person or by the failure of the landowner or other authorized person to post notice denying entry onto private land. The privilege may be revoked at any time by personal communication of notice by the landowner or other authorized person to the entering person.
(2) To provide for effective posting of private land through which the public has no right-of-way, the notice provided for in subsection (1) must satisfy the following requirements:
(a) notice must be placed on a post, structure, or natural object by marking it with written notice or with not less than 50 square inches of fluorescent orange paint, except that when metal fenceposts are used, the entire post must be painted; and
(b) the notice described in subsection (2)(a) must be placed at each outer gate and normal point of access to the property, including both sides of a water body crossing the property wherever the water body intersects an outer boundary line. (3) To provide for effective posting of private land through which or along which the public has an unfenced right-of-way by means of a public road, a landowner shall:
(a) place a conspicuous sign no closer than 30 feet of the centerline of the roadway where it enters the private land, stating words substantially similar to "PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT ___ MILES"; or
(b) place notice, as described in subsection (2)(a), no closer than 30 feet of the centerline of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders unfenced private land, except that orange markings may not be placed on posts where the public roadway enters the private land.
(4) If property has been posted in substantial compliance with subsection (2) or (3), it is considered closed to public access unless explicit permission to enter is given by the landowner or the landowner's authorized agent.

 

[mtlion]

That's not quite true.

45-6-201. Definition of enter or remain unlawfully. (1) A person enters or remains unlawfully in or upon any vehicle, occupied structure, or premises when the person is not licensed, invited, or otherwise privileged to do so. Privilege to enter or remain upon land is extended either by the explicit permission of the landowner or other authorized person or by the failure of the landowner or other authorized person to post notice denying entry onto private land. The privilege may be revoked at any time by personal communication of notice by the landowner or other authorized person to the entering person.
(2) To provide for effective posting of private land through which the public has no right-of-way, the notice provided for in subsection (1) must satisfy the following requirements:
(a) notice must be placed on a post, structure, or natural object by marking it with written notice or with not less than 50 square inches of fluorescent orange paint, except that when metal fenceposts are used, the entire post must be painted; and
(b) the notice described in subsection (2)(a) must be placed at each outer gate and normal point of access to the property, including both sides of a water body crossing the property wherever the water body intersects an outer boundary line. (3) To provide for effective posting of private land through which or along which the public has an unfenced right-of-way by means of a public road, a landowner shall:
(a) place a conspicuous sign no closer than 30 feet of the centerline of the roadway where it enters the private land, stating words substantially similar to "PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT ___ MILES"; or
(b) place notice, as described in subsection (2)(a), no closer than 30 feet of the centerline of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders unfenced private land, except that orange markings may not be placed on posts where the public roadway enters the private land.
(4) If property has been posted in substantial compliance with subsection (2) or (3), it is considered closed to public access unless explicit permission to enter is given by the landowner or the landowner's authorized agent.

I believe this is true as far as simple tresspass is concerned. The whole game changes the second you have a rifle or fishing rod in your hands. MT law prohibits hunters and anglers from accessing private land without permission.

 

[ridge-runner]

I'm guessing the law referred to is MCA 87-6-415, failure to obtain permission for hunting. There it's discussing the necessity for a hunter to obtain permission before hunting on private property. The definition of "hunt" under 87-2-101 also makes it seem that scouting could fall under this too, even if the property isn't marked as it need be in MCA 45-6-201.

By looking at 45-6-201, I'm thinking that getting permission and the privilege afforded to an individual to occupy private property when it is not posted are severed by MCA 87-6-415 if one is hunting.

 

[notellm]

This is a great post! I am looking a section of state ground here in MT. My map and garmin show the corner coming into the county rd. There is a NO trespassing sign then a little "entering state lands" then next fence post No trespassing. Looks like a solid 30 feet of state ground on the county rd. Anyways my little peanut brain says jump the fence and watch the line close. Looking for thoughts on this? always has big critters on it as the rancher doesnt allow hunting and is one prime peace of ground.

 

[THWAK1]

I'd contact FWP and plan on hunting it. I hunt a place similar to that and FWP says the landowner is a pain in their ass! He calls on us and everyone else all the time, FWP or the local sherrif then calls us and tells us not to worry about it. Good luck and kill something big!