H. B. 2791
(By Delegates Beach, Stemple, Williams and Tabb)
[Introduced
March 1, 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; and to amend said code by adding thereto a
new section, designated §61-3B-6, all relating to trespass
generally; providing for use of blaze orange paint posting
marker; and providing a penalty for illegal posting of the
land of another person.
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; and that said code be amended by adding
thereto a new section, designated §61-3B-6, all 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 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 and at
boundary gates, 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 or the boundaries may be marked with a
clearly visible painted marking consisting of two painted parallel
lines, blaze orange in color each no less than two inches in width
affixed to permanent objects along the boundary not more than one
hundred feet apart and at boundary gates. The signs shall 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 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 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 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 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
considered as enclosed and posted.
(8) "Trespass" under this article is the willful unauthorized
entry upon, in or under the property of another, but shall not
include the following:
(a) Entry by the state, its political subdivisions or by the
officers, agencies or instrumentalities thereof as authorized and
provided by law.
(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) 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) Entry performed in the exercise of a property right under
ownership of an interest in, under or upon such property.
(e) Entry where no physical damage is done to property in the
performance of surveying to ascertain property boundaries, and in
the performance of necessary work of 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.
§61-3B-6. Illegally posting lands of another person; penalties.
Notwithstanding any provision of this code to the contrary,
any person who knowingly and willfully posts lands owned, leased or
under the supervision of another person without that person's
signed consent to do so, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than five hundred
dollars and the court shall order the convicted person to remove
any illegally posted signs or illegally painted markers.
NOTE: The purpose of this bill is to provide for use of blaze
orange paint for posting markers and to provide a penalty for
illegal posting of the land of another person.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-3B-6 is new; therefore, strike-throughs and underscoring
have been omitted.
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