trespassers

By: Peggy Kirk Hall, Thursday, December 17th, 2020

Whether from trespassers, thieves, vandals, disgruntled employees, drug makers, activists, or extremists, farm security threats are a risk farmers face.  Unfortunately, current social and political conditions have added new dimensions to that risk.  Intruders can harm property in many ways:  releasing or injuring livestock, stealing anhydrous or chemicals, destroying crops, contaminating water, introducing disease, setting fires, or committing other acts of theft, vandalism or destruction.   

Recent suspicious activities on Ohio farms have reminded us of the need for constant awareness of farm security and the threat of intentional harm to farm property.  Our newest publication, Intentional Harm to Farm Property:  Legal Options and Strategies for Farm Owners aims to meet this need by addressing:

What to do when a farm security issue occurs.  Three immediate actions can be helpful to ensuring a clear-headed reaction to an incident:

  • Call local law enforcement.
  • Secure the property and preserve the evidence.
  • Contact insurance provider.

Options for legal action.  How can a farmer address a security incident through the legal system?  Local law enforcement might pursue a criminal action, a farm owner might choose to file a civil action, or both criminal and civil actions could take place.  Conferring with law enforcement and an attorney will help determine an appropriate course of action.  The bulletin explains common criminal actions that might apply to a farm security episode, such as:

  • Agricultural product or equipment terrorism
  • Animal or ecological terrorism based on corrupt activity
  • Arson
  • Aggravated arson
  • Breaking and entering
  • Criminal damaging or endangering
  • Criminal mischief
  • Criminal trespass
  • Injuring animals
  • Poisoning animals
  • Reckless destruction of crops or timber
  • Theft
  • Vandalism
  • Attempt, complicity and conspiracy regarding any of the above crimes

We also review laws that provide for civil actions against someone who intentionally harms farm property, such as:

  • Civil action for damages for criminal act
  • Civil theft and willful damage
  • Civil trespass to personal property, such as animals and equipment
  • Civil trespass to real property
  • Civil vandalism
  • Civil action for animal or ecological terrorism
  • Destruction of crops or timber

Preventing the risk of farm security occurrences.   Farmers can adopt practices that reduce the possibility of intruders and incidents of intentional harm to farm property.  We list a dozen strategies in the bulletin that may be helpful, such as marking, posting and security property boundaries, maintaining a record of suspicious activities, vetting employees, and conferring with a security professional.

Read more about Intentional Harm to Farm Property:  Legal Options and Strategies for Farm Owners, which is available in the agricultural law library, here. 

By: Peggy Kirk Hall, Monday, December 02nd, 2019

With archery season in full swing and deer gun season opening today, hunters will be out in full force across Ohio.  That means it’s also high season for questions about hunting laws, trespassers, property harm, and landowner liability.  Below, we provide answers to the top ten frequently asked questions we receive on these topics.

  1. I gave them permission to hunt on my land, but do I have to sign something?  Yes.  Permission to hunt should be in writing.  Ohio law requires a person to obtain written permission from a landowner or the landowner’s agent before hunting on private lands or waters and to carry the written permission while hunting.  A hunter who doesn’t obtain written permission can be subject to criminal misdemeanor charges.  ORC 1533.17.  The ODNR provides a permission form at http://wildlife.ohiodnr.gov/Portals/wildlife/pdfs/publications/hunting/Pub8924_PermissiontoHunt.pdf.   If a hunter uses another form, read it carefully before signing and ensure that it only addresses hunting and doesn’t grant other rights that you don’t want to allow on the land.
  2. Do family members need a license to hunt on my land?  Some of them will, depending on their relationship to you.  Resident landowners, their children of any age and their grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowners’ private lands and waters.  The same rule applies if a limited liability company (LLC), limited liability partnership (LLP) or a trust holds the land and the LLC, LLP or trust has three or fewer members, partners, trustees and beneficiaries, as long as the LLC member, LLP partner or trustee is a resident of Ohio.   When the landowner is not a resident, only the landowner, spouse and children of any age may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state.  ORC 1533.10.  Family members who don’t fall under the license exemption must obtain a hunting license and follow the written permission requirement.   
  3. Does a hunter need my permission to retrieve an animal injured on another property?  Yes.  The written permission requirement applies to all of these activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild bird, wild waterfowl or wild animal.  ORC 1533.17.
  4. Will I be liable if a hunter is injured on my land?  Probably not.  Two laws apply to this situation, depending upon whether you gave the hunter permission.   A landowner is not liable for injuries to or harm caused by a hunter who does not have written permission to be on the land.  ORC 1533.17.  Ohio’s Recreational User Statute applies when a hunter does have permission to be on the land; it states that a landowner has no legal duty to keep the premises safe for a hunter and assumes no responsibility for or incurs liability for any injury to person or property caused by any act of a hunter.  ORC 1533.181.  Note that this immunity doesn’t apply if the landowner charges a fee for hunting, unless the fee is a payment made under a hunting lease with a hunter or hunting group.  ORC 1533.18.  Read more about the law in our law bulletin, here.  These laws provide significant protection from liability for hunter injuries, but won’t protect a landowner who willfully or recklessly causes harm to hunters.  One situation that might rise to the level of willful or reckless conduct by a landowner is granting permission to too many hunters and failing to inform or manage the hunters, explained below.
  5. What if several people want to hunt on my land—how many should I allow?  Ohio law does not state how many hunters can have permission to hunt on a parcel, but be careful about setting up a dangerous situation by allowing multiple hunters on the land at onceIf you do give permission to several hunters, let them know that others could also be hunting on the land and designate a particular parking area so that they know when other hunters are present.  You could even consider scheduling hunters on certain days.  If the hunters are part of a hunting club, consider leasing your land to the hunting club and letting the club decide how to manage multiple hunters (see our Hunting Lease checklist, here).  Taking such steps to manage multiple hunters will ensure that you aren’t behaving recklessly and have immunity from liability under the Recreational User Statute.
  6. Should I allow a hunter to bring along someone who’s not hunting? In regards to liability for that person, the Recreational User Statute described above applies to any person engaging in any kind of recreational activity, in addition to hunting. Hiking or walking on the land is a recreational activity covered under the law.  As long as you give permission and don’t charge the recreational user a fee, the law provides immunity from liability for their injuries. 
  7. What if a hunter leaves a tree stand or a blind on my land—can I get rid of it?  It depends.  It’s okay to carefully remove a stand or blind from the area, but be careful about damaging or getting rid of it too soon if it’s the property of a hunter who had permission to be on the land.  According to Ohio common law, you might be liable for the property under a claim of “conversion” if the property is not “abandoned” or “lost.”  Abandoned property is that to which the owner has relinquished all rights with the intention of not reclaiming it, while lost property is that which the owner has involuntarily parted with through neglect, carelessness, or inadvertence.  A finder who possesses abandoned property takes absolute title to the property, while a finder of lost property takes title against everyone except the owner.  In either case, destroying or disposing of property that is not abandoned or lost could lead to a claim of conversion, and you could be liable for the damages. 
  8. What if a hunter who had my permission to hunt ends up harming my property?  There are two ways with deal with property harm from hunters.  First, the hunting laws prohibit a hunter from acting in a negligent, careless or reckless manner so as to injure persons or property.  Violating this law can lead to first degree misdemeanor charges and compensation to the landowner, as well as revocation of the hunting licenses and permits.  ORC 1533.171 and 1533.99.  Second, Ohio law allows a landowner to seek compensation for the “reckless “destruction of vegetation, trees and crops under ORC 901.51.  Reckless means acting intentionally and without regard for consequences.  If successful, a landowner can receive triple the amount of the harm caused to the property.   
  9. What can I do to a trespasser who’s hunting on my land?   Dealing with trespassers is tricky.  First, don’t willfully harm the trespasser, as you could be liable for causing intentional harm.  Second, call your local ODNR wildlife officer or the Turn in a Poacher program, below, to report the incident.  Third, read our law bulletin on “Do’s and Don’ts of Dealing with Trespassers on the Farm,” available on farmoffice.osu.edu, here
  10. What if I see someone violating hunting laws?  ODNR’s “Turn in a Poacher” program encourages the public to report wildlife violations such as hunting out of season or without a license or permission.  The program provides several ways to report:  complete an online form available at http://wildlife.ohiodnr.gov/stay-informed/turn-in-a-poacher-tip and submit it through the internet or via mail,  call the TIP hotline at 1-800-POACHER, or use the same number to text photos of suspects, vehicles or signs of violations.  All reports are confidential.   

The nursery rhyme “A Hunting We Will Go” paints a happy-go-lucky picture of hunting.  But hunting raises many questions and concerns for agricultural landowners.  Ohio law offers rules and remedies that can ease those concerns.  Landowners who know and use the laws just might be able to hum along with the nursery rhyme through hunting season.

 

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