jeremy27 wrote:If you were prosecuted by the Park County DA for criminal trespass you may be able to rely on the section of the criminal code you quoted. If the landowner sued you civilly for trespass that section may not insulate you from civil liability. They are two different systems – think of OJ, he was acquitted of the criminal charges but liable civilly. Trespass under the civil system has a different standard entirely, see below:
Hoery v. United States, 64 P.3d 214, 217 (Colo. 2003):
The elements for the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property. Public Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389 (Colo.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 933 (Colo.1997). The intrusion can occur when an actor intentionally enters land possessed by someone else, or when an actor causes something else to enter the land.
"Climbing" Bross without permission probably isn't that important to the local authorities, they need to worry about real crimes. Could it be important enough for the landowner to sue over - who knows.
I understand the differences between civil and criminal law. What I don't see is the threat of civil action as a legitimate risk in this case.
Lets take a look at the first case you mentioned (Hoery v United States):
Casebriefs.com wrote:Citation. 64 P.3d 214 (Colo. 2003).
Brief Fact Summary.
The United States dumped toxic chemicals at Lowry Air Force base which seeped north seven blocks underneath Plaintiff’s property and into his groundwater. Plaintiff sued and Defendant argued that the statute of limitations barred the claim. The California Supreme Court disagreed under the continuing tort theory.
Whether the United States’ chemical dumping is a continuing tort such that Plaintiff’s claim continues to accrue and is not barred by the statute of limitations.
Held. Yes. For “continuing” intrusions, either by way of trespass or nuisance, each repetition or continuance amounts to another wrong, giving rise to a new cause of action. The practical significance of the continuing tort concept is that for statute of limitations purposes, the claim does not begin to accrue until the tortious conduct has ceased. By contrast, a “permanent” intrusion, often found in the context of irrigation ditches and railways, the trespass or nuisance continues indefinitely absent extraordinary measures, and in fact is encouraged to remain because it benefits the development of the state. Under the permanent intrusion theory, an action to recover for damages would accrue when the lands where first visibly affected. Because the record did not reflect that the continued presence of toxic pollution under Plaintiff’s land would continue indefinitely, and could be, but had not yet been, remediated by the United States, the court declined to apply a permanent theory and instead deemed the violation a continuing one. Accordingly, Plaintiff’s claim was not barred by the statute of limitations.
Honestly, do you think that case has any reasonable similarity to the issue we're examining in this thread?
Your second case (Gerrity Oil & Gas Corp. v. Magness) concerns a dispute between a landowner and the holder of mineral rights on the property. The argument in that case is also very far removed from the debate that is going on in this thread. But, you might note this statement that was found in the decision to the Magness case:
If a privilege to enter the property of another is defined in terms of reasonableness, trespass may only occur when the holder of the privilege acts unreasonably or unnecessarily. See Magliocco v. Olson, 762 P.2d 681, 685 (Colo.App.1987)
Notice the similarity in the use of the word "privilege". The section of the Colorado Revised Statutes that I quoted already defines the fact that you are granted a "privilege" under the circumstances described in that statute. Moreover, the Magness case you provided in this thread also states:
Whenever a claimant alleges that a statute, ordinance, or regulation implicitly creates a private right of action, the critical question is whether the legislature intended such a result.
Is it your belief that the legislative intent in CRS 18-4-201(3) was vague or ambiguous in any way, at least as it pertains to the issue of simply walking up to the summit of Mt. Bross?
Also in the Magness case:
Although it is true that reasonableness is often irrelevant to a trespass claim, this is only because in the usual case the property rights of the one asserting the trespass claim are limited only by geographical boundaries. However, when a surface owner brings a claim of trespass against a mineral rights holder, the surface owner's right to exclude is limited not by the geographical boundaries of the property owned by the surface owner, but by the lessee's right to do what is reasonable and necessary for the development of the mineral rights. See Salardino, 125 Colo. at 522, 245 P.2d at 464 (“[N]either the owner of the surface nor the owner of the subjacent rights can lawfully destroy, interfere or damage the right of the other.”). Therefore, a mineral owner or lessee that violates this rule of reasonable surface use commits a trespass.
Again, the issue of trespass that was brought forth in this case is a totally different issue than the one we are examining in the case of hikers accessing Mt. Bross. As the law I provided already explains, an owner has every right to exclude hikers from his/her property. However, if they essentially make no such effort to do so, we are thereby granted privilege to enter that land (with some limitations).
We could pick apart cases for days while trying to make a for-or-against argument here. But, it is quite obvious that the cases you've presented thus far involve an intrusion onto someone's property that is far greater in scope than the mere act of walking up to a summit (in accordance with CRS 18-4-201(3)). Your first case involves dumping hazardous waste. The second case involves a dispute between a mineral extraction company and the surface owner. After reading these cases, I don't believe that either one creates an issue of case law that would create a risk to me, should I go and stand on the summit of Bross tomorrow.
I don't live my life in fear of lawyers. My job in law enforcement is such that I'm sued by dissatisfied criminals from time-to-time, and common sense has prevailed in every case that has ever been brought against me. If you don't want to walk up Bross, don't do it. But, I think there's enough evidence to suggest that you will not be able to get in trouble for doing so under the current situation (wherein the landowner(s) have not signed the property, fenced it, or made efforts to inform each hiker of the trespass).