It’s the law: A prelude to trespass
by Gary Redenbacher
Nov 29, 2012 | 1681 views | 0 0 comments | 8 8 recommendations | email to a friend | print

During my middle school years, the orchard around the corner was bulldozed and a shopping center erupted. Being that my friends and I were kids, it was our sacred duty to know everything one could possibly know about that jobsite.

(Our esteemed editor, Peter Burke, remarked to me once that I seemed to have had a rather rambunctious childhood.)

As the buildings went up, our little crew could be counted on to explore every inch of the project after the big crew went home. Even when doors and windows went in, we knew how to get inside and explore.

At some point, a security guard was hired to look after the site. We discovered this one evening as we wandered around inside one of the unfinished stores just as the security guard strolled by the plate glass windows.

His surprise was surely as great as ours as he stood, slack-jawed, staring at us. It had to be a comical sight as we looked at one another for perhaps a minute. Then the guard frantically loped off one way looking for our entrance.

A short time later, he came huffing the other way as his search turned up no open doors or windows.

Baffled, he returned to the plate glass windows, where we had remained, perhaps out of curiosity as much as at a loss for what to do.

The guard resorted to that time-honored tradition — calling us all manner of obscenities. As we foolishly mimicked him, he became ever more incensed.

At some point, however, one of our little crew panicked and started shinning up a pole to the roof, whence we had gained entrance.

Although he might have been out of shape, Mr. Guard was no dummy. He instantly realized that there must be a ladder to the roof and ran off searching. Meanwhile, we realized what he had realized, so each of us took to a pole in a desperate race against time.

We reached the roof before the guard and sprinted for the ladder. But just as we reached the ladder up top, the guard reached it down below.

We were doomed — or so most of us thought.

Then one boy turned, sprinted and leaped off the roof. A gasp went up from the group. We ran to the edge, certain that the boy was now dead. But instead of dead, he was lying in a large sand pile 15 to 20 feet down, exhorting all of us to jump.

Most of us leaped, one at a time, to blessed escape. Only the biggest, “toughest” kid resisted, but with a scream of terror, he jumped just as the guard came huffing up to grab him. (We never let Tough Guy live it down.)

Although we doubted the guard would go Superman on us, we grabbed a stray piece of plywood and threw it on top of the sand pile. The invectives started flowing, but we had no appetite to stick around and learn inventive words that would surely get us into further trouble at home. We high-tailed it for safer pastures.

What we kids were doing is well known to just about everyone. We were trespassing — or were we?

The concept of private property is a relatively recent one in human history. Ask the vast majority of people in American society, however, and they cannot imagine a system in which the land is not owned, either privately or by the government.

Along with this notion, most property owners believe they have an absolute right to exclude everyone all the time from their property. But it’s not so — and it drives my clients nuts when I tell them that.

There are many exceptions to the right to exclude others from your property.

To name a few: Surveyors have the right to enter for the purpose of surveying land. Easements allow others to pass over another’s property. The subpoena power of the court allows entry onto land or even into buildings. And, of course, the police have the power to go onto land or into buildings under certain circumstances.

Still, property owners have the right to exclude most people most of the time. The question is when you can exclude others and what legal requirements are involved.

In my next column, I’ll go into some of the unique aspects of both criminal and civil trespass.

- Gary Redenbacher of Scotts Valley is an attorney in private practice. Email him at gary@redbrownlaw.com.

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