Introduced Version House Bill 2142 History

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H. B. 2142

(By Delegate Yost)

[Introduced February 10, 2005 ; referred to the

Committee on the Judiciary.]

A BILL to amend and reenact §61-3B-1 of the code of West Virginia, 1931, as amended, relating to defining curtilage as it relates to trespass.

Be it enacted by the Legislature of West Virginia:

That §61-3B-1 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:


§61-3B-1. Definitions.

As used in this article:

(1) "Structure" means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.

(2) "Conveyance" means any motor vehicle, vessel, railroad car, railroad engine, trailer, aircraft or sleeping car, and "to
enter a conveyance" includes taking apart any portion of the conveyance.
(3) An act is committed "In the course of committing" if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

(4) "Posted land" is that means land upon which reasonably maintained signs are placed not more than five hundred feet apart along and at each corner of the boundaries of the land, upon which signs there appears prominently in letters of not less than two inches in height the words "no trespassing" and in addition thereto the name of the owner, lessee or occupant of the land. The signs shall must be placed along the boundary line of posted land in a manner and in a position as to be clearly noticeable from outside of the boundary line. It shall not be is not necessary to give notice by posting on any enclosed land or place not exceeding five acres in area on which there is a dwelling house or property that by its nature and use is obviously private in order to obtain the benefits of this article pertaining to trespass on enclosed lands.

(5) "Cultivated land" is that means land which has been cleared of its natural vegetation and is presently planted with a crop, orchard, grove, pasture or trees or is fallow land as part of a crop rotation.

(6) "Fenced land" is that means land which has been enclosed by a fence of substantial construction, whether with rails, logs,
post and railing, iron, steel, barbed wire, other wire or other material, which stands at least three feet in height. For the purpose of this article, it shall not be is not necessary to fence any boundary or part of a boundary of any land which is formed by water and is posted with signs pursuant to the provisions of this article.
(7) Where Lands are posted, cultivated or fenced as described herein, then such lands, for the purpose of this article, shall be are considered as enclosed and posted.

(8) "Trespass" under this article is means the willful unauthorized entry upon, in or under the property of another, but shall does not include the following:

(a) (A) Entry by the State, its political subdivisions or by the officers, agencies or instrumentalities thereof as authorized and provided by law;

(b) (B) The exercise of rights in, under or upon property by virtue of rights-of-way or easements by a public utility or other person owning such right-of-way or easement whether by written or prescriptive right;

(c) (C) Permissive entry, whether written or oral, and entry from a public road by the established private ways to reach a residence for the purpose of seeking permission, shall not be trespass unless signs are posted prohibiting such entry;

(d) (D) Entry performed in the exercise of a property right
under ownership of an interest in, under or upon such property;
(e) (E) Entry where no physical damage is done to property in the performance of surveying to ascertain property boundaries and in the performance of; or

(F) Entry where no physical damage is done to perform necessary work of for construction, maintenance and repair of a common property line fence, or buildings or appurtenances which are immediately adjacent to the property line, and maintenance of which necessitates entry upon the adjoining owner's property.

(9) "Curtilage" means the space and buildings surrounding a dwelling house necessary or convenient, and habitually used, for domestic purposes in the conduct of family affairs, whether or not enclosed by a fence. Curtilage includes a fenced area surrounding a dwelling, and includes a garden, whether or not separated from other lands by a fence.

NOTE: The purpose of this bill is to clarify the meaning of curtilage as it applies to trespass.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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