Public or Private?

[Stevie-B]

I'll give you my $0.02. I own about 40 acres in York Co. Nothing worth fishing at the moment, although I wouldn't mind if people did fish. I would probably go and talk to them if I saw them. (With a flyrod in my hand, of course.)
Hunting tho opens an entirely different can of worms. With the potential for deadly projectiles and how stupid people can be, I would have a major issue if someone who didn't have permission hunted my property. There have been a lot of lawyers that have gotten rich off of stupid lawsuits. If someone got hurt or killed, that is one court battle I have no interest in participating in. In my opinion, one of the reasons you are seeing more posted signs is many landowners don't want to get dragged into expensive lawsuits over someone else being stupid. And stupidity is not in short supply these days.

 

[pcray1231]

Well, regarding that.

1. By leaving your land open to others, you are 99% protected against lawsuits if they get hurt or hurt someone else. The other 1% is basically if you do something with the intent of harming them, i.e. leave traps with that intended purpose. On the other hand, if you post and give permission, you are not protected from lawsuits.

2. For your own family's safety, safety zones are still in effect around structures whether you post or not. That largely keeps them far enough away from you and your family that shotguns are not deadly.

3. But rifles are a different story, of course. Rifles, though, are deadly for several miles, so you're never really safe from an idiot with a rifle, whether it's fired from your property or miles away.

 

[Stevie-B]

pcray - you are right. I may be protected but that doesn't stop someone from filing a lawsuit (hot coffee anyone?). And lawyers are good at finding loopholes. On the few minor cases that I've had to deal with, the "guilty" went unpunished and the innocent still had to pay with time and money. Just not something I want to deal with.

The other thing to keep in mind, I spend all this time, money and resources to improve the quality of the game that use my property. Do I really want someone else to just wander in help themselves? If I had more acreage I may be more open to it but 40 is not that much when you have a house, barn and fenced fields. Chances are they won't know the game trails and push them onto my neighbors.

 

[FarmerDave]

pcray1231 wrote:
Well, regarding that.

1. By leaving your land open to others, you are 99% protected against lawsuits if they get hurt or hurt someone else. The other 1% is basically if you do something with the intent of harming them, i.e. leave traps with that intended purpose. On the other hand, if you post and give permission, you are not protected from lawsuits.

Correction. Not AS protected, but still reasonably protected. You still have a considerable degree of protection, not to mention the ability to screen who is there which in itself is protection.

The kicker is that if you know of a particular hazard on the property and don't inform them of it when granting permission ... and then that person gets injured by that hazard, ... you COULD BE found liable.

This is from memory, but the way I understand it, this describes the degree of liability protection from most to least.

1. Trespasser. If you land is posted, or you specifically told someone to stay off of your land, but they trespass anyway and get hurt, you have the greatest amount of protection from liability. As close to 100% as you can get.

2. Not posted provides assumed consent. Normally this means the landowner takes on greater responsibility for the uninvited guests, but many states, including PA have some special game laws that provide significant liability protection for the landowner. pcray or JackM can probably explain that.

3. Posted, but granting selective permission. If you are directly granting permission, you have the responsibility to inform the "guest" of any known hazards. As long as you inform them of all known hazards on the property, then you have similar protection as number 2. But if you dig a post hole and didn't inform them of it, and they broke an ankle as a result, you could be held liable. However, with posting and granting selective permission, you also have the distinct advantage of controlling and limiting the amount of people LEGALLY on the property. So one could argue that protection is greater if you post and then grant selective permission.

4. Invited guest, whether you post the land or not. With invited guests, you have the greatest responsibility to protect the guests. But fortunately, invited guests are probably less likely to sue in the first place in the event of a minor incident.

Again, that was from memory and from previous discussions on this.

 

[franklin]

From a hunting perspective I post. The streams on my land are small so I wouldn't consider opening them up either. If I was bordering a larger stream, such as Penns, I'd likely open a section along the stream with a posted boundary a bit off the stream.

 

[pcray1231]

Fair enough on the lawsuit side.

As for the improving the quality of the game, that's the part I often have a problem with. You are choosing to do that. Knowing full well that the game itself is not yours. If I go out and put up a food plot for deer, that doesn't make the deer mine.

In fact, I kind of abhor that whole scene. I know it's become a thing to put up foodplots and so forth, but it reeks of baiting to me. The sport (hunting) for me is about chasing a wild animal in his territory on his terms. Even shooting a nice buck near a farm takes a little something away from it for me, knowing he got nice by eating farmed crops planted by man. Though at least the farm had a separate purpose, it wasn't planted for the intended purpose of attracting deer and making bucks get bigger.

There's some parallels to wild vs. stocked trout, IMO. I mean, no, we don't stock deer like we do trout. But even for wild trout, if someone has a honey hole and throws pellets in there daily. As a result that hole holds more wild trout than it should naturally, and they grow faster and get bigger as well. And yeah, you can bop in and catch a bunch on pellet flies. But even if they are technically "wild", that doesn't strike me as particularly sporting, certainly not moreso than stocked fish.

I guess I view hunting and fishing as chasing game in their natural environment, or at least, as close to natural as possible. Not creating an environment to be to your advantage.

 

[pcray1231]

FD,

It's not so much based on how permission was granted. PA's recreational use of land and water act is summarized as follows:

So long as no entrance or use fee is charged, the Act provides that landowners owe no duty of care to keep their land safe for recreational users and have no duty to warn of dangerous conditions.

The level of duty of care that landowners owe to entrants depends on the classification of the entrant. Landowners owe a high duty of care to people invited or permitted onto the land (i.e., “invitees” or “licensees”). But landowners owe trespassers only the duty not to deliberately or recklessly harm them.

i.e. if you do not post, and people come on your land, you have a very low duty of care. Completely free from negligence. Your only danger is really if you did something to maliciously, i.e. intentionally harm them.

On the other hand, if you post and allow certain people, you have a much higher liability to warn of dangerous situations. If you expressly invite people, an even higher liability. If you charge an entrance fee, FULL liability.

The safest thing to do, legally, is not post your property.

The gray area is:

Level of improvement on the land. Swimming pools, basketball courts, and the like constitute improvements and thus make the landowner liable if someone gets hurt using those improvements.

Railroad grades, farm equipment, fences, and the like are not improvements, and thus the landowner is protected from liability should any of those cause harm.

Basically the dividing line is whether you make the improvement FOR your guests. So, let those kids fish your lake. If you made a dock for yourself, and they fish from it, fine. Just don't build a fishing platform for their enjoyment.

***Note***

There was a case in 2007 where a hunter was hunting on private property by permission. Shot and hit someone on a neighboring property. The landowner would have been protected from injuries occurring on HIS property, but this was on someone else's, and thus the landowner was held partially liable in civil court. It was a loophole that caused quite a stir among landowners and sportsmens groups alike.

That loophole has now been closed by a 199-0 vote in the PA legislature. The landowner is now protected if someone on their property hurts someone on another property, provided they are not an invited guest.

Again, the worst thing you can do is prohibit the public and then invite only certain individuals. You become liable that way. Much better to allow everyone.

 

[Stevie-B]

So you are saying that stream improvements should not be done? That honey hole became sweet because of the habitat, not because of the pellets. I didn't get into specifics but I don't have any food plots that don't naturally occur; oaks, hickories, persimmons, blackberries/raspberries. (OK, there are a few apple trees but they are all but wild now). I appreciate where you are coming from and probably see more eye to eye than it appears, but as a landowner in this area, I don't want to lose what I've worked for because some idiot messed up. Now, if I'm the idiot, I'll take the consequences.

 

[pcray1231]

So you are saying that stream improvements should not be done?

I see them as generally aiming to restore degradation caused by man. If a stream isn't degraded, no, they shouldn't be done. If it is, trying to artificially repair what we screwed up is ok.

But the purpose shouldn't be to make a single honey hole. It should be to improve the stream as a whole.

That honey hole became sweet because of the habitat, not because of the pellets.

There are lots of cases where that's not true. Where it's the pellets!

I suppose the reason I don't see many deer behind my house anymore is because the habitat went downhill after my neighbor took away his salt block.

I don't see a real difference between hunting over a salt block vs. hunting over an alfalfa field planted with the purpose of attracting deer. That's what I was getting at.

As for farm fields with other purposes, or your apple trees? Well, I guess it'd be like in bear hunting. Dump a bunch of deer carcasses and that's baiting. Hunt over a deer carcass that died there naturally, well, that's using the environment to your advantage, no different than figuring out bedding areas or feeding areas or escape lanes.

It's whether you hunt the environment you have, or alter that environment intentionally. And in those situations, I'm 100% ok with a natural attraction, like a stand of oaks dropping acorns. But a human planted and groomed corn field? Kind of a gray area for me. Not "baiting" as it's not there for the purpose of hunting, per se. But certainly an "unnatural" attraction.

I'll hunt it. But I won't feel comfortable about it. lol....

I didn't get into specifics but I don't have any food plots that don't naturally occur; oaks, hickories, persimmons, blackberries/raspberries. (OK, there are a few apple trees but they are all but wild now).

While not claiming anywhere in PA is truly "wild" in the sense that the flora and fauna is the same as before white man, what you state here is effectively the equivalent of "wild" today. i.e. you are hunting your land as it is. Not intentionally altering your land for the sake of improving your hunting. I don't have a problem with that.

but as a landowner in this area, I don't want to lose what I've worked for because some idiot messed up.

I guess I just don't get this? I assume by "messed up" you mean hurt himself or someone else, and thus worried about civil lawsuits. I don't see how you would lose anything if he did (other, than, of course, your life if he hurt YOU, but again, there is a safety zone even if you didn't post, and you're in just as much danger from rifles from people hunting a mile away).

 

[pcray1231]

Again, the worst thing you can do is prohibit the public and then invite only certain individuals. You become liable that way. Much better to allow everyone.

Going back to the earlier "the polite thing to do is ask permission, whether it's posted or not".

This varies by region of the state. For legal reasons, many landowners prefer that you DON'T ask permission, because granting it is akin to an invite, which ups the landowners liability.

I know one who even refuses to use words that sound anything like an invite. He'll say

"I'm not telling you that you can use my property. But I'm not telling you you can't either. I don't post it."

First time I heard that I scratched my head, till I figured out why he said it like that.

Who told me why was a friend, with about 100 acres, including a trout stream. Anytime anyone asks him for permission, he says no. But it's not posted either and he won't kick anyone off, he's just scared of taking a position that he can be held to. If you went and asked and he said no, you could walk right down to the stream with a fishing rod and fish right past his window, and he'd pretend he didn't see you.

He's even gone and talked to guys fishing before. Pretends not to be the owner. That way they don't ask. Cause he doesn't want to say yes, and nor does he want to say no.

 

[DanL]

Rules, courtesies, aside. I just wish there was a more aesthetically pleasing way to do it. I just hate those yellow signs being hammered into the trees. Maybe I didn't pay as much attention growing up, but seems like they are just everywhere now...

 

[moon1284]

Hopefully I am fortunate enough to own land along a stream or river one day. I would 100 percent not post it and wouldn't expect people to ask permission to fish.

 

[Reeder]

My uncle lives on a private lake and lets kids from the neighborhood fish off his dock whose families aren't land owners on the lake, and the home owners or whatever association are giving him all kinds of grief about it. Saying the kids families don't help pay for the bluegill and perch they catch. Those kids don't even keep fish. Talk about being "Entitled"

There are likely some homeowners there who are disgusted that the little urchins are even breathing their bought and paid for fresh air.

 

[FarmerDave]

pcray1231 wrote:
FD,

It's not so much based on how permission was granted. PA's recreational use of land and water act is summarized as follows:

So long as no entrance or use fee is charged, the Act provides that landowners owe no duty of care to keep their land safe for recreational users and have no duty to warn of dangerous conditions.

The level of duty of care that landowners owe to entrants depends on the classification of the entrant. Landowners owe a high duty of care to people invited or permitted onto the land (i.e., “invitees” or “licensees”). But landowners owe trespassers only the duty not to deliberately or recklessly harm them.

i.e. if you do not post, and people come on your land, you have a very low duty of care. Completely free from negligence. Your only danger is really if you did something to maliciously, i.e. intentionally harm them.

Is that not what I said? See number 2.

Number 1 is posting and not letting anyone on the land which CLEARLY provides the greatest protection for the landowner.

On the other hand, if you post and allow certain people, you have a much higher liability to warn of dangerous situations. If you expressly invite people, an even higher liability. If you charge an entrance fee, FULL liability.

Define much? If you nave some known hazards, especially man made, and you grant permission and the get hurt, then yes, I would agree that the "risk" is much higher. But as long as you inform them of all known hazards, you are covered and the increased risk is minimal, and virtually eliminated since you can be selective of who you grant permission to.

Electric fence packs a wallop, stay away from the bee hives, watch out for the chuck holes. If you go near the pond, watch out for the muskrat holes. Do not use MY treestands. Stay away from the old dump. etc...

Probably best if in writing, but if you are granting permission to someone you know, then it is better if you know them well.

The safest thing to do, legally, is not post your property.

I Disagree. Safest is post it and not let anyone on it.

The gray area is:...

Yep. there are some gray areas, but not if you post and not let anyone on the property. But what you said has some merit. Once you get the above through your thick skull, them maybe we can talk about that.

Again, the worst thing you can do is prohibit the public and then invite only certain individuals. You become liable that way. Much better to allow everyone.

Once again, this is completely wrong. Worst thing would be posting it and then charge admission. I missed that one earlier so thanks for pointing it out. Next worse would be posting it and granting permission to a sue happy ******. That can be greatly minimized by knowing the person that you are granting permission to.

I'm not even convinced what you said is second worst.

 

[FarmerDave]

pcray1231 wrote:

Again, the worst thing you can do is prohibit the public and then invite only certain individuals. You become liable that way. Much better to allow everyone.

Going back to the earlier "the polite thing to do is ask permission, whether it's posted or not".

This varies by region of the state. For legal reasons, many landowners prefer that you DON'T ask permission, because granting it is akin to an invite, which ups the landowners liability.

Not true.

Granting permission is not akin to an invite whether it is personally granting permission, or assumed permission. But I will agree that there are people who might twist that around to an invite so that they can sue. That is the fear. So it is best if the landowner just say that it isn't posted.

OK you can argue this is semantics, but the bottom line is the plaintiff would have to prove they were an invited guest.

I know one who even refuses to use words that sound anything like an invite. He'll say

"I'm not telling you that you can use my property. But I'm not telling you you can't either. I don't post it."

Now you know two.

I've even gone so far to tell people that they can hunt here if they ask, but that I am not "inviting" them to do so for insurance reasons. And then I also take the other precautions. It's a working farm, there are hazards.

And if you try to enter my fenced back yard without me being present, one of the dogs might try to eat your face if you act badly towards either dog. It's up to you to figure out which one, but you will figure it out quick enough if you act badly. ;-)

 

[FarmerDave]

One more thing, Pat. To further explain how you are wrong, actually very wrong when you say safest thing is to not post at all, I looked it up.

RULWA extends to the landowner whether he posts his land or not. I was pretty sure of that earlier, but now I looked it up. You apparently assumed he wouldn't be, but that assumption as it turns out is false.

RULWA is not exclusive to those that do not post, it simply levels the playing field for everyone who grants permission for recreational use.

In other words, if a landowner grants permission to someone to use their land for recreational purposes, he is covered under RULWA whether that permission is in person (whether posted or not), or assumed (not posted).

But one still has to consider the gray areas, improved land, trespass laws and various other things.

So, what I said earlier is correct.

Safest from liability from landowner perspective is..

1. Post and deny.
2. Post and grant selective permission
3. not post (assumed permission).
4. invite
5. charge admission.

RULWA apparently does extend to all of those situations.

Differences between 1 thru 3 are small.

The kicker is landowner's responsibility to inform the guest of known hazards. I would argue if you know of hazards that are not obviously apparent, and do not inform the "guest" of these known hazards, it does increase risk in 2. 4. and 5.

link

 

[bikerfish]

I'd post, AND have trump help me build a wall!! HA!!

 

[JF_]

bikerfish wrote:
I'd post, AND have trump help me build a wall!! HA!!

And make Ohioans pay for it

 

[bikerfish]

haha!! perfect!

 

[FarmerDave]

JF, I that wasn't the best response ever, it was at least the best so far this year and Al gets an assist.

I'm not worried though because I actually have a birth certificate that says I was born in PA.