Senate Bill No. 437
(By Senator Bailey, Facemyer and Caldwell)
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[Introduced January 29, 2002; 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, relating to
certain painted markings symbolizing posted land for
trespassing purposes.
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 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 shall be 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 definition 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.
NOTE: The purpose of this bill is to
add certain painted
markings to the definition for posted land for trespassing
purposes.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.