Senate Bill No. 562
(By Senators Harrison, Minard, Unger, Love and Facemyer)
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[Introduced February 17, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section one, article three-b, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
six, all relating to providing that the term "posted land" for
purposes of defining "trespass" includes postings accomplished
with certain colors of paint; and providing a penalty for
persons who post other persons' or entities' lands.
Be it enacted by the Legislature of West Virginia:
That section one, article three-b, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be further
amended by adding thereto a new section, designated section six,
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, 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 are marked with a clearly visible painted marking
consisting of two parallel lines each no less than two inches in
width affixed to immovable, permanent objects which are not more
than one hundred feet apart. The paint shall be red, orange or
bright yellow in color. Signs adhering to the standards prescribed
in this section shall be posted at boundary gates. The signs or paint markings 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. Penalties for improper posting of lands of another.
Any person who posts lands owned or controlled by another
person or entity by any means, as described in section one of this article, without the authority to do so, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than five
hundred dollars and shall be required to remove the improperly or
unauthorized posting signs or to paint over any posting made with
paint.
NOTE: The purpose of this bill is to
provide that the term
"posted land" for purposes of defining "trespass" includes postings
accomplished with certain colors of paint. The bill also provides
a penalty for persons who post other persons' or entities' lands.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section six is new; therefore, strike-throughs and
underscoring have been omitted.
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