H. B. 4323


(By Delegates Beach, Fleischauer,

Marshall and Fahey)


[Introduced January 31, 2002; referred to the

Committee on the Judiciary.]




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 trespassing generally and providing for posting of property by clearly visible paint markings.

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:
(A) 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. The These 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; and
(B) Land upon which the boundaries are marked with clearly visible painted markings, consisting of two parallel lines, each no less than two inches in width, affixed to immovable, permanent objects and which are not more than one hundred feet apart. The paint shall be orange or bright yellow in color and shall be maintained so that the markings are reasonably visible from a distance of one hundred feet. Where boundaries are clearly marked with painted markings, signs, adhering to the standards prescribed in this definition for posted signs, shall also be posted at all boundary gates.
It shall not be is not 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 allow the use of clearly visible painted markings to designate or post land on which trespassing is prohibited.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.