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Old 08-16-21, 01:28 PM
  #48  
GhostRider62
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Originally Posted by rhm
Interesting discussion! Let's look a little closer at some of the terms used:

Trespass. According to my old Merriam-Webster dictionary, "tresspass" is, in one sense, "1a : a violation of moral or social ethics : TRANSGRESSION: esp [/]: SIN" and in another sense "TREPASS implies an unwarranted, unlawful, or offensive intrusion." (all this on p. 944 of a 1969 edition). OP is clearly trying to be inoffensive, so I am not convinced that he is trespassing. I would need to see the specifics of what he's referring to, before I could voice an opinion.

common law
According to the same Merriam-Webster (p. 167), Common Law is "the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and consisting of the basis of the English legal system in all of the U. S,. except Louisiana." Which is interesting (particularly the bit about Louisiana; does Common Law not apply in Louisiana, but it does apply in other states in land acquired through the Louisiana Purchase? weird!), but does not actually tell us anything useful to this discussion. As I read it, OP is specifically asking what is common law regarding use of thoroughfares that are publicly accessible but not publicly owned, and the answer (assuming all respondents are experts) seems to depend on location.

your world
This whole discussion seems to be U. S. based, and several posters have revealed a distinctive US understanding of Common Law. To be clear, I too am an American and I am not a lawyer in any sense of the word, common or otherwise. so I am clearly not an expert. I have spent some time in foreign countries, however, and am pretty sure other countries are much more relaxed about trespassing. In remote areas of Europe I believe land owners do not have the right to prevent travelers (hikers, bike tourists, &c) from camping on their property, provided there is no harm. So, for example, you can camp in an apple orchard, but you can't cut apple branches for firewood and you can't eat the apples. Alpine hikers regularly climb over electrified fences and cheerfully greet the cows (and the farmers) they pass as they travel over private land; they have been doing it as long as anyone can remember and no one complains about the practice. A certain amount of etiquette is required, of course; you have to treat other people's property respectfully. Though you could probably hang a hammock between two of the apple trees in the orchard without harming them, I don't believe anyone would do so; that would seem against the rules.

right-of-way
I may have missed it, or can it be that no one has mentioned right of way? My dictionary defines it as "a legal right of passage over another person's ground" and that seems to be at the heart of the question. Who has right of way over the property in question? I don't know, and it seems to me no one who has posted on this thread does, so... who knows.


OP said the property was posted. It was thru a private complex.

There is not much more to know. You don't post if there is a right of way.

In my state, if a property is posted, it is more likely to be a criminal trespass but probably just a disorderly persons type of offense at the worse.

Isn't it obvious that a residential community would not want strangers cutting thru their property? Isn't that their right? So, it is posted. When you knowing go onto that property knowing it is posted, that action makes you a defiant trespasser. That makes it a criminal trespass in principle. I deal with this all the time with hunters. My neighbor was dumping garbage onto my property because he has a small property and I have a much larger one. I never made it a legal issue but was prepared to if he did not stop and did not clean up the junk he threw on my property. I am quite clear on the law in my state. You cannot go onto a property that is posted without permission. That is the law in all states, more or less

https://www.nolo.com/legal-encyclope...ssing-law.html
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