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:
ARTICLE 3B. TRESPASS.
§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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