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Property

What is the law regarding trespassing on my property by hunters or joyriders?

A person is guilty of criminal trespassing in the second degree if he or she knowingly enters or remains unlawfully upon real property which is fenced or enclosed in a manner designed to exclude intruders. Ala. Code §13A-7-3. Criminal trespass in the second degree is punishable by not more than three months imprisonment in the county jail or hard labor for the county. Ala. Code §13A-5-7. A person who knowingly enters or remains unlawfully on premises not fenced would be guilty of criminal trespass in the third degree, punishable by imprisonment in the county jail not to exceed 30 days. Ala. Code §13A-7-4. To deter trespassers, a landowner should have his land fenced and posted.

A person in lawful possession or control of premises may legally use (reasonable but not deadly) physical force upon a trespasser where and to the extent he reasonably believes it to be necessary to prevent or terminate what he reasonably believes to be criminal trespass. Ala. Code §13A-3-25. Reason would dictate that a verbal command to terminate the trespass be given to the trespasser prior to using physical force. Intentional injury of a trespasser could result in criminal charges of assault being brought against the landowner. Devices such as “blind” cables or ditches used for the purpose of stopping trespassers that result in injury or death of the trespasser could also result in legal liability of the landowner.

What is the best way to resolve the problem of adjoining landowners placing a fence on our side of the property line?

First, you want to eliminate any claims of adverse possession pursuant to Ala. Code §6-5-200. The elements of adverse possession are actual, exclusive, open, notorious, and hostile possession under claim of right for a term of 10 years preceding the commencement of the action. A simple lease signed by the adjoining landowner would preclude any possibility of his adverse possession of your land, even if the fence is too far over your line.

Alternatively, you may want to engage a surveyor to determine the boundary line between the two pieces of land. If the fence is in fact on your land, you may seek appropriate legal action to have the fence removed.

What legal duty do I owe persons I permit to come on my land for hunting and other recreation?

Your legal duty as an owner, lessee, or occupant of premises depends on the status of the person entering the premises. The three general categories recognized by common law are trespassers, licensees, and invitees. The legal duty owed to a trespasser is slight, only to use not more force than is necessary to terminate the trespass or not to intentionally injure the trespasser. A licensee is a person who enters the premises of another with permission for the entrant’s own purpose. The legal duty generally owed to licensees consists primarily of warning them of any dangerous condition, unless specifically exempt by statute law. An invitee is a person coming onto the premises for a purpose related to the business of the owner or occupant such as fee hunting, fee fishing or other fee recreation or pick-your-own operations. The legal duty to protect an invitee is higher than that owed a licensee. The invitee has a right to expect that the premises are reasonably safe and that warnings will be given about any conditions on the premises that cannot be made safe by the owner, lessee, or occupant.

When other persons are permitted to come on to your land to hunt, fish, camp or for other recreational purposes without paying a fee or otherwise benefiting you, they will generally be classified as a licensee. You will owe them no legal duty of care to keep such premises safe for entry and use or to warn them of hazardous conditions. Ala. Code §35-15-1. The owner, lessee, or occupant is also protected from liability in the event that a licensee by his own action injures his person or property. Ala. Code §35-15-2. However, willful or malicious failure to guard or warn against a dangerous condition that causes the injury of a licensee results in legal liability of the owner, lessee, or occupant. Ala. Code §35-15-3.

What legal duty do I have to persons who pay to come on my land for hunting or fishing?

Alabama laws do not offer limited liability for owners, lessees or occupants of land where permission to hunt or fish was for a commercial enterprise for profit. Ala. Code §35-15-3. Entrants on to your land who pay to hunt or fish would be classified as invitees, as explained previously, and you would owe them a duty of care to make your premises safe and to warn them of any dangerous conditions that you could not make safe. For day-permitted hunting and fishing, it would be prudent to obtain liability insurance. If hunting or fishing rights leases for a season or longer are used, it would be advisable to prepare and execute a detailed written lease addressing liability, as well as other items, and require the lessees to obtain hunter’s/sportsman’s liability insurance.

What are the desirable elements of hunting leases?

Most hunting leases are for one year or longer and must be in writing and signed by the lessor (landowner) and the lessee (hunter) to be legally binding on both parties. A lease conveys certain property rights from the lessor to the lessee and requires certain duties of the lessee. Such rights and duties should be clearly defined. The minimum terms of the hunting lease should include:

• A legal description of the land.
• Types of game to be hunted.
• Duration of the lease.
• Amount and time of rent to be paid.
• Agreement of lessee to abide by applicable game laws.
• Agreement of lessee to conserve and maintain the property (roads, trees, food plots, structures).
• Number of members and limit of guests.
• Agreement by the lessee to exempt the lessor from liability for injury suffered by the lessee or third parties.
• Agreement of the lessee to obtain hunters liability insurance.
• The names, addresses and signatures of the lessor and lessee(s).

Hunting with firearms is inherently dangerous, and written and executed leases convey certain important rights. Thus it is advisable to seek legal advice prior to entering into long term hunting leases.

How can I protect myself from lawsuits in my “pick-your-own operation”?

Persons who pay to come on to your land and pick agricultural products are entering at your invitation and for your benefit; they would be classified as an invitee to whom you owe a legal duty of care to protect them from injury. The duty of care, as explained previously, is to make your property safe and to warn them of any dangerous or hazardous conditions that can not be made safe or are beyond your control. It is your duty as the owner, lessee, or occupant of the property to inspect it and know and correct any unsafe condition that could result in injury to an invitee. There may be conditions beyond your control, such as insects, animals, or noxious plants, that you would be required to warn invitees about. Since accidents may occur that are beyond the control of the best managed operations; liability insurance is the best protection against loss from lawsuits.

If I lease my land to another farmer, what is my liability as the property owner?

In the absence of a covenant to repair, a landlord is liable only for injury resulting from latent defects known to him at the time of the leasing which he concealed from the tenant. Collier v. Duprel, 480 So.2d 1198. Exceptions occur where latent defects are known by the landlord and concealed; instances where the landlord retained control over the premises or portions thereof; instances where landlord voluntary undertakes to repair; and instances where landlord has covenanted, contracted, or agreed to undertake repairs.

To limit liability, the lessor may want to include an indemnity provision, which would provide for the lessee to defend and indemnify the lessor for any acts that were the result of gross negligence or intentional actions on the part of the lessee.

What are the general rules regarding access to property?

A landowner has the right to be free from a continuing trespass on his land. Trespass has been defined as “any entry on the land of another without express or implied authority,” See Cove Properties, Inc. v. Walter Trent Marina, Inc. (Ala.Civ.App. 1999).

However, if one landowner’s property is surrounded by other landowner’s property, then the landlocked landowner may obtain access over the other landowner’s property to get to a public road or highway. “The owner of any tract or body of land, no part of which tract or body of land is adjacent or contiguous to any public road or highway, shall have and may acquire a convenient right-of-way, not exceeding in width 30 feet, over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto provided written approval is obtained from the municipal government and the planning board of such municipality.” Ala. Code §18-3-1.

If the catfish harvest crew that is employed by the processor gets hurt on our land while harvesting fish, who is liable?

You are liable if you in some way negligently or intentionally caused the injury.

What are the laws pertaining to public access to my property adjacent to a creek or stream?

In the absence of an easement, a landowner has the right to be free from a continuing trespass on his land. Trespass has been defined as “any entry on the land of another without express or implied authority,” See Cove Properties, Inc. v. Walter Trent Marina, Inc. (Ala.Civ.App. 1999).

What are my rights regarding water use from a stream that flows through my property?

A riparian owner is a person who owns land on a bank of a river, or one who is owner of land along, bordering upon, bounded by, fronting upon, abutting, or adjacent and contiguous to and in contact with the river. A riparian owner can use ground water and surface water to improve his property as long as it does not unreasonably interfere with the possessory rights of the lower landowner. Also, a landowner may use percolating water for a reasonable and beneficial use pertaining to agriculture, manufacturing, or irrigation, but cannot waste the water to the injury of others. Finally, a riparian owner may also use state waters (i.e., all waters of any river, stream, watercourse, pond, lake, coastal, groundwater or surface water, wholly or partially within the state, natural or artificial. This does not include waters which are entirely confined and retained completely upon the property of a single individual, partnership or corporation unless such waters are used in interstate commerce) upon notification to the Alabama Office of Water Resources.

Non-riparian owners have a right of nonconsumptive use of water from naturally occurring, navigable watercourses in this state. This right of nonconsumptive use does not extend, however, to non-navigable watercourses. Neither does this right of nonconsumptive use extend to common law surface waters. Riparian owners, by comparison, have nearly exclusive rights to use and consume the non-navigable waters on their lands.





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