I recently read Ken Ilguna's new book This Land Is Our Land: How We Lost the Right to Roam and How to Take It Back. In an extremely oversimplified nutshell, the book argues for public rights to recreate on private open land because some European countries do it and it's great. I don't necessarily agree with all the author's conclusions. However, it does present interesting questions to think about in the context of Maine law. First, what rights do Mainers have to recreate on privately owned land? Second, what rights do landowners have to enforce their rights to exclude? Lastly, what rights to landowners have in the event of damage or invasions of privacy?
I. What rights do Mainers have to hike, bike, and use private land?
Criminal trespass in Maine is defined as knowingly entering a dwelling place, locked structure. Further, criminal trespass includes when one "[e]nters any place from which that person may lawfully be excluded and that is posted”. 17-A M.R.S.A. § 402. You will notice landowners must post notices on land for roamers to be liable for criminal trespass. This is consistent with Maine’s presumption of permission.
The Law Court held that “public recreational use of private land is presumed to be permissive.” Lyons v. Baptist Sch. of Christian Training, 2002 ME 137, ¶42, 804 A.2d 364, 377. Essentially, unless land is posted, the public can roam across private land without violating any laws. “This tradition recognizes the State's desire to encourage the hunting, hiking, and other outdoor activities for which Maine is celebrated and on which much of Maine's economy is based.” Almeder v. Town of Kennebunkport, 2014 ME 139, ¶30, 106 A.3d 1099, 1112. “The presumption recognizes that public recreational use ‘is consistent with, and in no way diminishes, the rights of the owner in his land.’” Id.
The big impact the presumption has is it makes establishing prescriptive easements for recreational uses incredibly difficult. One of the elements required to establish a prescriptive easement is the use was adverse to the rights of the landowner (i.e. without the landowner’s permission). If permission is presumed, the result is public recreational easements are going to be limited greatly. However, in theory landowners will be much less likely to post no trespassing signs and close off their land if they do not need to worry about losing property rights.
What rights to trespassers have in Maine if they get injured on private property? “One who enters upon, remains upon or uses personal property of another without that other's consent or legal right so to do is a trespasser” Cogswell v. Warren Bros. Road Co., 229 A.2d 215, 219. In Maine, as a general rule, trespassers will have no right to recover damages for injuries as a trespasser. The exception to this rule would be if a landowner intentionally set up dangerous booby traps that result in injuries.
II. What rights do landowner's have in the event of damages to their property?
As an initial note, one right landowners will have is to just post their property to close it off to recreation. However, even if landowners choose not to post their land, there are avenues to enforce property rights when land users push the limits. Just because the public may cross unposted property without worrying about criminal trespass liability does not mean people are free to do anything they want on private land. The presumption of permission has its limits and once users start causing damages on private land Maine has a strong penalties (up to triple damages and attorney’s fees) that landowners may seek in a trespass action.
In a statutory trespass action in Maine damages may be doubled or tripled depending on the circumstances of the case. For example, intentional trespass can result in double damages and attorney fees for the plaintiff. Damages are “measured either by the replacement value of the damaged property or by the cost of repairing the damaged property. For damages for disposing of litter, the owner’s damages include the direct costs associated with properly disposing of the litter, including obtaining permits, and the costs associated with any site remediation work undertaken as a result of the litter.” 14 M.R.S. § 7551-B
Because Maine has so much woodland, Timber Trespass is an important subcategory of trespass in Maine. Under Maine’s timber trespass statutes, one may not “Cut down, destroy, damage or carry away any forest product, ornamental or fruit tree, agricultural product, stones, gravel, ore, goods or property of any kind from land not that person’s own” 14 M.R.S.A. § 7552(2)(A). The landowner may recover the greater of the value of the trees or the reduction of property value. Negligent timber trespass will result in the landowner recovering double damages. Intentional timber trespass can lead to triple damages. Land owner may also recover the costs of professionals hired to recover damages.
To conclude Maine law does a fairly good job of balancing the competing interests or landowners and hikers. Hikers do not have to be overly concerned about legal liability for crossing over private land. At the same time, landowners are generally going to be able to avoid liability for injured trespassers and giving up prescriptive rights to the public. Further, in the event of users abusing private property, landowners may resort to a statutory trespass action. This balance should incentivize a large amount of land remaining unposted and available for outdoor recreation.