Fence postsQuestion, why do I need a ladder?
VikingsGuy
Well-known member
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VikingsGuy
Well-known member
In WY you don’t now - UIA all the way for the win!Question, why do I need a ladder?
Khunter
Well-known member
if the penalty is less than $100 for touching a fence post I will skip the ladder.
seeth07
Well-known member
Yes but by the judges ruling, the uia protects you from having to swing around a fence post in a brief moment of trespass
His UIA violation permitted the least amount of trespass necessary to transit from / to public.
I wonder if Eshelman is on a UPOM "Keep Out" watchlist.
antlerradar
Well-known member
I would argue that the state is charging taxes now. The value of your airspace is part of the overall value of the property and that value is taxed. The problem Eshelman had is that the hit the value his airspace took when someone steps across a corner is very small.
antlerradar
Well-known member
If I was an Eshelman type of landowner I would hire a good mathematician to figure out the chances you step over the corner without touching his private on an unknown corner. I am no mathematician but considering you traverse the unknown corner twice it appears that the chances of successfully crossing the corner are less that 5% even with a good GPS. I would not want to go into a trial as a defendant where the prosecution can show that statically show I had a 95% or better chance of being guilty. Maybe in a criminal trial that 5% would be enough for reasonable doubt of guilt for a jury. but in a civil trial where the bar is much lower I would not like my chances. Again at an unpinned corner you have a weaker case than at a corner with a pin.
Eshelman and the CA would get laughed out of the court room if that was their plan of attack.
antlerradar
Well-known member
I defer to VikingsGuy, He is a lot smarter than me. You can not just walk through an unmarked corner and call it close enough and the math says blundering through is what you would be doing on an unmarked corner.
How would you prove that they took it in the first place?
Well yes, that too. I’m trying to figure out the maximum penalty. There is a good chance it couldn’t be proven and the penalty would therefore be $0.
BrentD
Well-known member
The easiest way to save the pins is to simply require that any landowner that wants to enforce precision corner crossing to maintain that corner. Failure to so would be read as being okay to cross "close enough".
Something needs to be done to protect corners markers from migrating.
That said, one of my corners is in the bottom of a river.
Washington Hunter
Well-known member
Land surveys are not cheap, so I doubt very many property owners are going to start pulling out corner monuments in order to prevent corner crossing. Besides, without a known corner, there's no way to prove a person did trespass.
There would be no way in hell they could prove that you did not cross at the exact corner. Mathematical probability would not mean squat. Remember, the burden of proof is on them.
TheJason
Well-known member
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Beyond a reasonable doubt is 100% probability.
Dakotakid
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It is criminal mischief.
This was a legislative bill back in 2003.
This is not the current law. But rather proposed legislation.
This is not current law. This didn’t pass.
Section 1. Section 45-6-101, MCA, is amended to read:
"45-6-101. Criminal mischief. (1) A person commits the offense of criminal mischief if the person knowingly or purposely:
(a) injures, damages, or destroys any property of another or public property without consent;
(b) without consent tampers with property of another or public property so as to endanger or interfere with persons or property or its use;
(c) damages or destroys property with the purpose to defraud an insurer; or
(d) fails to close a gate previously unopened that the person has opened, leading in or out of any enclosed premises. This does not apply to gates located in cities or towns.
(E) DAMAGES, DESTROYS, REMOVES, OR MOVES A SURVEY MONUMENT, AS DEFINED IN 70-22-103, WITHOUT CONSENT. THIS SUBSECTION (1)(E) DOES NOT APPLY TO A LICENSED PROFESSIONAL SURVEYOR RETAINED TO PERFORM SURVEYING WORK.
(2) A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and amount of restitution after full consideration of the convicted person's ability to pay the restitution. Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered must be made prior to the release of state jurisdiction over the person convicted.
(3) (a) A Except as provided in subsections (3)(b) and (3)(c), a A person convicted of the offense of criminal mischief shall be fined not to exceed $1,000 or be imprisoned in the county jail for any term not to exceed 6 months, or both.
(b) If the offender commits the offense of criminal mischief and causes pecuniary loss in excess of $1,000, injures or kills a commonly domesticated hoofed animal, or causes a substantial interruption or impairment of public communication, transportation, supply of water, gas, or power, or other public services, the offender shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.
(c) An offender who commits the offense of criminal mischief by damaging, destroying, removing, or moving survey monuments without consent shall be fined an amount not to exceed $1,000 for each monument damaged, destroyed, removed, or moved or be imprisoned in the state prison for a term not to exceed 10 years, or both.
This was a legislative bill back in 2003.
This is not the current law. But rather proposed legislation.
This is not current law. This didn’t pass.
Section 1. Section 45-6-101, MCA, is amended to read:
"45-6-101. Criminal mischief. (1) A person commits the offense of criminal mischief if the person knowingly or purposely:
(a) injures, damages, or destroys any property of another or public property without consent;
(b) without consent tampers with property of another or public property so as to endanger or interfere with persons or property or its use;
(c) damages or destroys property with the purpose to defraud an insurer; or
(d) fails to close a gate previously unopened that the person has opened, leading in or out of any enclosed premises. This does not apply to gates located in cities or towns.
(E) DAMAGES, DESTROYS, REMOVES, OR MOVES A SURVEY MONUMENT, AS DEFINED IN 70-22-103, WITHOUT CONSENT. THIS SUBSECTION (1)(E) DOES NOT APPLY TO A LICENSED PROFESSIONAL SURVEYOR RETAINED TO PERFORM SURVEYING WORK.
(2) A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and amount of restitution after full consideration of the convicted person's ability to pay the restitution. Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered must be made prior to the release of state jurisdiction over the person convicted.
(3) (a) A Except as provided in subsections (3)(b) and (3)(c), a A person convicted of the offense of criminal mischief shall be fined not to exceed $1,000 or be imprisoned in the county jail for any term not to exceed 6 months, or both.
(b) If the offender commits the offense of criminal mischief and causes pecuniary loss in excess of $1,000, injures or kills a commonly domesticated hoofed animal, or causes a substantial interruption or impairment of public communication, transportation, supply of water, gas, or power, or other public services, the offender shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.
(c) An offender who commits the offense of criminal mischief by damaging, destroying, removing, or moving survey monuments without consent shall be fined an amount not to exceed $1,000 for each monument damaged, destroyed, removed, or moved or be imprisoned in the state prison for a term not to exceed 10 years, or both.
VikingsGuy
Well-known member
Nah. Not that simple. Jury A could find trespass and Jury B could find no trespass - such is the nature of our system.
