So Mad, Hogzilla in FHL

[Felq]

according to local game warden, if u shoot a pig and it wanders across fence line u have the right to recover as long as u are weaponless!

I am fairly certain that if you enter private property to recover personal property, your fruit fallen from your tree (if it falls on your neighbor's land), an animal that you have deprived of its natural liberty (shot such that it will die), etc., you are still a trespasser but with the temporary privilege to enter the land to recover the belonging. I would not bring any weapon on the private property to make sure you do not look like you are hunting that land. This warden's comment makes sense to me. Anyone know of a code/provision that says otherwise?

 

[KTKT70]

I have never heard were any one gets a "temporary privilege" ????

"you can never go onto privet property without the land owners permission." here is what he said.. just incase I got it wrong sum how. Sounds like NEVER to me ???

 

[Hikingwithguns]

I am fairly certain that if you enter private property to recover personal property, your fruit fallen from your tree (if it falls on your neighbor's land), an animal that you have deprived of its natural liberty (shot such that it will die), etc., you are still a trespasser but with the temporary privilege to enter the land to recover the belonging. I would not bring any weapon on the private property to make sure you do not look like you are hunting that land. This warden's comment makes sense to me. Anyone know of a code/provision that says otherwise?

Please cite F&G code or PC for this "temporary privilege". I know you are new but for something like this you gotta cite some sort of law to back it up.

This is from the ca penal code section 602:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=594-625c

"602. Except as provided in subdivision (u), subdivision (v),subdivision (x), and Section 602.8, every person who willfullycommits a trespass by any of the following acts is guilty of amisdemeanor:"

"(h) (1) Entering upon lands or buildings owned by any other personwithout the license of the owner or legal occupant, where signsforbidding trespass are displayed, and whereon cattle, goats, pigs,sheep, fowl, or any other animal is being raised, bred, fed, or heldfor the purpose of food for human consumption; or injuring,gathering, or carrying away any animal being housed on any of thoselands, without the license of the owner or legal occupant; ordamaging, destroying, or removing, or causing to be removed, damaged,or destroyed, any stakes, marks, fences, or signs intended todesignate the boundaries and limits of any of those lands. (2) In order for there to be a violation of this subdivision, thetrespass signs under paragraph (1) must be displayed at intervals notless than three per mile along all exterior boundaries and at allroads and trails entering the land. (3) This subdivision shall not be construed to precludeprosecution or punishment under any other provision of law,including, but not limited to, grand theft or any provision thatprovides for a greater penalty or longer term of imprisonment."

"(l) Entering any lands under cultivation or enclosed by fence,belonging to, or occupied by, another, or entering upon uncultivatedor unenclosed lands where signs forbidding trespass are displayed atintervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands without thewritten permission of the owner of the land, the owner's agent, orof the person in lawful possession, and (1) Refusing or failing to leave the lands immediately upon beingrequested by the owner of the land, the owner's agent or by theperson in lawful possession to leave the lands, or (2) Tearing down, mutilating, or destroying any sign, signboard,or notice forbidding trespass or hunting on the lands, or (3) Removing, injuring, unlocking, or tampering with any lock onany gate on or leading into the lands, or (4) Discharging any firearm. (m) Entering and occupying real property or structures of any kindwithout the consent of the owner, the owner's agent, or the personin lawful possession."

They could get you under (h) or (l) it would appear. Most of the land around FHL is used for cattle grazing. They can also get you under 602.8...

When I hunt small private land this is why I shoot until the animal drops. 90% of the meat is better than 0%

 

[Hikingwithguns]

From the Fish and Game Code:

"2016.

It is unlawful to enter any lands under cultivation or enclosed by a fence, belonging to, or occupied by, another, or to enter any uncultivated or unenclosed lands, including lands temporarily inundated by waters flowing outside the established banks of a river, stream, slough, or other waterway, where signs forbidding trespass or hunting, or both, are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering those lands, for the purpose of discharging any firearm or taking or destroying any mammal or bird, including any waterfowl, on those lands without having first obtained written permission from the owner, or his or her agent, or the person in lawful possession of, those lands. Signs may be of any size and wording that will fairly advise persons about to enter the land that the use of the land is so restricted."

They might be able to also get you under this if dragging your pig out is considered part of "taking...any mammal".

 

[Felq]

I have never heard were any one gets a "temporary privilege" ????

"you can never go onto privet property without the land owners permission." here is what he said.. just incase I got it wrong sum how. Sounds like NEVER to me ???

Not NEVER. A privilege to enter or trespass on real property is a defense to a tort claim. It has to be reasonable (in time and extent). You can enter someone's land to retrieve your personal property.

Restatement (Second) of Torts, § 197. Private Necessity
(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to
(a) the actor, or his land or chattels, or
(b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.
(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.

Well established case law: “Wild animals become property when removed from their natural liberty and made subjects of a person's dominion.” This includes mortally wounding an animal, and/or trapping it such that it cannot get free.

Chattels are tangible items of personal property, and preventing the decay of your animal would be preventing serious harm to your personal property.

Again, I see no reason why you are not allowed to temporarily enter a person's private property to remove an animal that you have mortally wounded. Just don't bring your gun.

Please cite F&G code or PC for this "temporary privilege". I know you are new but for something like this you gotta cite some sort of law to back it up.

:chimp:

Firstly, I don't see what being "New" has anything to do with this. Do you mean "new" to the forum, "new" to the world, or "new" to the law? How would having more time/posts on this forum qualify you in anything more than proficiency in this forum? This patronizing mentality bothers me (and many others) because it is most often completely irrelevant and unnecessary.

To answer your doubts/concerns, The "temporary privilege" is a defense to a tort action, and there is no penal statutory or regulatory code on the subject. See my comment above. Please indicate the precise language in Cal Penal Code section 602, H or I where it says that you cannot enter the land to retrieve a mortally wounded animal. I don't see it, nor could I find any other authority (legal tretise, case law, etc) applying that section to entering to retrieve a mortally wounded animal. Keep in mind that judicial interpretation of law is the law (until congress changes it again), and the "private necessity" privilege is well recognized across America as well as within California.

If you are curious about the subject of when a wild animal becomes a person's chattel, start with the famous and ancient case of Pierson v Post (google it).

Respectfully,
MGM

 

[Felq]

according to local game warden, if u shoot a pig and it wanders across fence line u have the right to recover as long as u are weaponless!

I think this law enforcement official knows the law. Maybe someone else can ask another warden when they see one...

 

[Hikingwithguns]

:chimp:

Firstly, I don't see what being "New" has anything to do with this. Do you mean "new" to the forum, "new" to the world, or "new" to the law? How would having more time/posts on this forum qualify you in anything more than proficiency in this forum? This patronizing mentality bothers me (and many others) because it is most often completely irrelevant and unnecessary.

To answer your doubts/concerns, The "temporary privilege" is a defense to a tort action, and there is no penal statutory or regulatory code on the subject. See my comment above. Please indicate the precise language in Cal Penal Code section 602, H or I where it says that you cannot enter the land to retrieve a mortally wounded animal. I don't see it, nor could I find any other authority (legal tretise, case law, etc) applying that section to entering to retrieve a mortally wounded animal. Keep in mind that judicial interpretation of law is the law (until congress changes it again), and the "private necessity" privilege is well recognized across America as well as within California.

If you are curious about the subject of when a wild animal becomes a person's chattel, start with the famous and ancient case of Pierson v Post (google it).

Respectfully,
MGM

Not trying to be condescending. Just saying that you should not say things without anything to back it up. Please provide a reference for your quote. I provided a reference for the PC code. That is good that you have something to back up your assertions not just "someone once told me..."

If your quote is true you could use that as a defense. I'm sure the jury would buy your argument. What if the animal is not mortally wounded though? What if... Any case law to indicate that this has been used as a defense against trespassing successfully? No? So then its all speculation of how this would be interpreted against the PC. I'm going to go with what the warden recommends until then. Please let me know how the trespassing goes next time. I will let someone else be the guinea pig hehe.

 

[cali-carnivore]

I know that I personally refer to the fish and game codes when looking for hunting related questions. This post clearly shows that multiple laws apply outside game laws. I would hate to spend the time and money defending myself because of contradictions in jurisdiction. It is an informative thread.

 

[Hikingwithguns]

I know that I personally refer to the fish and game codes when looking for hunting related questions. This post clearly shows that multiple laws apply outside game laws. I would hate to spend the time and money defending myself because of contradictions in jurisdiction. It is an informative thread.

Exactly. After you pay $$$$$ for a lawyer, spend at least an afternoon around some interesting characters, get your guns out of jail, your truck out of impound, you might "win". If thats winning I would hate to see what losing looks like and winning isn't garunteed.

 

[cali-carnivore]

Depending on where you hunt laws can be very different. This post is about FHL, a federal military installation. State laws apply as well as Federal and Base regulations. Hunting is an escape from daily life for me and I prefer not to have my thoughts consumed by gray legal issues. IMO, when there is conflicting legal codes you should ask the local authority (the one that would write the ticket) or err on the side of caution.

 

[MapleSyrupSmuggler]

Everyone calm down. This is not Calguns.

 

[KTKT70]

I think this is one of those deals that's best left up to the law dogs. I have sent a PM and im sure we will get a answer back at sum point. I know the GW is out doing his job and may take a little bit be4 he can come back to deal with our silly mess. lol hang in there... more to come soon...

The GW I sent a pm to is the member here that already has posted. That way its easy for him to know what we are talking about.

 

[wedgy]

Could post it on the Q & A section of the DFG(or whatever) site http://californiaoutdoorsqas.com/

 

[Felq]

@Hikingwithguns (cool avatar name by the way): You asked me to provide a quote for the language above. However, the quotes I provided are not statutory. They are jurisprudential and the courts have adopted the language. The Restatement (Second) of Torts art. 197 is quoted above. This is an authority for the courts, and it becomes law when the courts adopt it. I could provide California case law citations, but that gets very technical. In general, the "Private Necessity" doctrine is longstanding common law that is applied across America. For a simple explanation, I refer to:

http://www.law.cornell.edu/wex/private_necessity

Alternatively, there is plenty on the doctrine if you google "private necessity"

From the Fish and Game Code:

"2016.

It is unlawful to enter any lands under cultivation or enclosed by a fence, belonging to, or occupied by, another, or to enter any uncultivated or unenclosed lands, including lands temporarily inundated by waters flowing outside the established banks of a river, stream, slough, or other waterway, where signs forbidding trespass or hunting, or both, are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering those lands, for the purpose of discharging any firearm or taking or destroying any mammal or bird, including any waterfowl, on those lands without having first obtained written permission from the owner, or his or her agent, or the person in lawful possession of, those lands. Signs may be of any size and wording that will fairly advise persons about to enter the land that the use of the land is so restricted."

They might be able to also get you under this if dragging your pig out is considered part of "taking...any mammal".

Fish and Game Code article 86: "Take" means hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.The definition of take does include pursue. A warden may get you for this if the animal has not perished... I would like to think that "Take" means the act of depriving the animal of its natural liberty, and retrieval is not a part of the definition of the word "take" for Fish and Game Code purposes. Definitely arguable.

This post clearly shows that multiple laws apply outside game laws. I would hate to spend the time and money defending myself because of contradictions in jurisdiction.

VERY good point! I guess it boils down to this: do you take the risk to retrieve HOGZILLA and have to defend yourself in court? For 300lbs of wild swine, I would be so inclined... I think you would have a good case... Alternatively, could the warden cite you for waste for not retrieving the animal? Damned if you do...?

I would really like to hear more about what wardens would do in this situation...

On a parallel issue, when lobster diving, you are not allowed to have a hooked pole with you. I asked two wardens if you could have a polespear with you while lobster diving. One said that it was fine as long as there were no holes in the lobster, the other said that I should look at the law. A friend of mine told me that he argued with another warden about this issue and after a lengthy discussion, the warden let him go. Individual wardens definately have their own desgretion in these matters (Just like police officers).

 

[Felq]

Sooooo, I called the DFW and spoke with a warden about the trespass on private land to retrieve your animal issue. This is what I found out:

- This is a common question.
- Before hunting in an area, speak to the neighbors.
- First ask permission to retrieve the animal. You should never just enter private land.
- If you enter private property to retrieve an animal and the landowner sues, you would need to work out your defense with a lawyer. He did not know about private necessity.
- If the landowner expressly forbids you from entering the land, call the local warden for assistance. The warden will usually work it out.
- You will not be cited for waste as long as you tried all possible ways to remove the animal.
- Never bring your firearm onto private property without permission.
- Do all that is possible to avoid a conflict with the landowner.
- If you can't get permission b/c you can't find the landowner, call the warden to ask for assistance.

He brought up an important point, make sure to first try to talk to the landowner. Just because you could defend yourself against a lawsuit (with the private necessity...), does not mean that it is the best outcome to the situation.

 

[spectr17]

So I find you on my land dragging a dead animal toward the fence you just hopped that was properly posted and no blood trail leading from the fence. You're darn tootin I'm calling deputy dog and having you arrested for trespass, even if you don't have a gun on you at the time. Now if you come knock on my door and tell me the story and it checks out then I'd had no problem walking back with you to get the deer. Done that few times as landowner and as the neighbor that had a hit deer jump a fence. Freelancing the recovery never ends well from what I've seen. I've asked wardens in AZ, UT, MO and CA this same question and they ALL say you CANNOT trespass to retrieve game. In CA I'm told the warden cannot force the landowner to give you your deer either. You can pull out all the legal quotes you want but I haven't seen one case where the trespassing hunter prevailed. Most ended up paying a fine and lost the deer anyway.

 

[Felq]

So we pick up from the situation where you get cited. You respond with the defense of private necessity. Said and done many times applicable in MANY circumstances (eg, peaceful repossessions of lawn mowers... As seen on tv - haha). That is how your attorney (or you representing yourself) would get you off the hook. Just trying to educate! Someone provided the excellent advice above that it is best to avoid that situation though.

Is it worth it? That is up to you. For a trophy hog... ($100 to hunt FHL, $500 in attorney fees/or your own time = $600: the same $ or cheaper than a private property hunt for a trophy hog). Again, up to you...

 

[cali-carnivore]

This is just a guess but I would imagine the wardens have dealt with this very situation many times. I imagine they have a relationship with the bordering land owners and have a contingency plan like allowing them to recover game or calling the land owner first. We have that on some of our ranches.