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Geocacher falls in 9 meter hole and survives - and is charged with trespass.


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The owner's archive note is telling:

 

"With the light of what has transpired today, I will have to archive these two caches, which Seaway has now deemed to be on private property, despite no signage stating so. I will be unable to remove these caches for fear of being fined and I cannot endorse anybody going to remove them on my behalf or to find them."

 

There is no excuse for this. It is the cache owner's responsibility to confirm that geocaching is permitted BEFORE hiding a cache there.

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The CO was aware that the entire area was off limits during most of the year and posted so. Since the waterway is legally accessible by boat, it would seem likely that the same area would be okay to visit while drained. Just because a ticket was written, it doesn't necessarily mean that it is valid. Without any signage the charges are questionable, and may be only intended to prevent more people from visiting. The property owner may be embarrassed and just be trying to prevent a lawsuit.

 

It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Edited by 4wheelin_fool
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People seem to not want to look at plat maps (most of which are online these days).

 

People seem to assume that just because there's a path somewhere, it's public access/property.

 

Never mind maps, most of these issues could be avoided with a phone call.

 

Without property ownership (GIS) maps, how are you supposed to know who to call in the first place, or even IF you need to call anyone.

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People seem to not want to look at plat maps (most of which are online these days).

 

People seem to assume that just because there's a path somewhere, it's public access/property.

 

Never mind maps, most of these issues could be avoided with a phone call.

 

Without property ownership (GIS) maps, how are you supposed to know who to call in the first place, or even IF you need to call anyone.

 

Town hall (or whichever local governmental entity has property records).

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While ideally we would not make assumptions about ownership, if I were the hider or the reviewer, at least here in the US, I would probably feel safe to assume that location to be public property based on aerial photos and the lack of private property signs.

 

How can you judge anything from aerial photos? And as far as I know you don't have to post signs on private property.

 

I still think all hiders should provide property ownership info when a cache is submitted for review. This would at least indicate they did their due diligence to search out who owns the property.

 

[edit: clarification]

Edited by BBWolf+3Pigs
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The CO was aware that the entire area was off limits during most of the year and posted so. Since the waterway is legally accessible by boat, it would seem likely that the same area would be okay to visit while drained. Just because a ticket was written, it doesn't necessarily mean that it is valid. Without any signage the charges are questionable, and may be only intended to prevent more people from visiting. The property owner may be embarrassed and just be trying to prevent a lawsuit.

 

It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

 

It's a very different issue. It's a controlled canal system that is part of the St. Lawrence Seaway.

 

The Seaway does permit public access to some of its land and facilities, under different circumstances, but that does not mean that geocaching is specifically permitted. It would have taken a few minutes for the cache owner to call the Seaway commission and find out what their policies are.

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It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Not always true. In my county in Washington state, and I think the others here in Puget Sound, the property extends to mean low tide. Below this level is state land. So legally you can't walk on the property between high tide and mean low tide, it is private land.

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It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Not always true. In my county in Washington state, and I think the others here in Puget Sound, the property extends to mean low tide. Below this level is state land. So legally you can't walk on the property between high tide and mean low tide, it is private land.

 

RI:

 

"For the purposes of determining public privileges, case law has interpreted the landward boundary of the shore to be the mean-high water mark, or mean high-tide, as the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, not simply the high-water mark at any moment."

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The information on the cache page seems to suggest that the cache owner knew about public access availability...."Please note, this cache can only be legally accessed during the winter months when the Fourth Welland Canal has been drained for it's yearly maintenance.Any other time of year is prohibited and those who do not respect this limitation, may be subject to penalty of law."

 

Maybe he did call the Seaway. Maybe he was given the wrong information, or maybe 4wheelin_fool is correct...the property owner may be embarrassed and just be trying to prevent a lawsuit.

 

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The information on the cache page seems to suggest that the cache owner knew about public access availability...."Please note, this cache can only be legally accessed during the winter months when the Fourth Welland Canal has been drained for it's yearly maintenance.Any other time of year is prohibited and those who do not respect this limitation, may be subject to penalty of law."

 

Maybe he did call the Seaway. Maybe he was given the wrong information, or maybe 4wheelin_fool is correct...the property owner may be embarrassed and just be trying to prevent a lawsuit.

 

I actually know the guy, you want me to ask? :lol:

 

I believe I may have found a previous incarnation of this cache; he pretty much archived every cache he ever owned, and it sounds like he brought this one back because it was his most favorite hide ever.

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While ideally we would not make assumptions about ownership, if I were the hider or the reviewer, at least here in the US, I would probably feel safe to assume that location to be public property based on aerial photos and the lack of private property signs.

 

 

I would not believe that a canal manager would approve a cache in an area that is drained for part of the year regardless of whether it is private or public.

 

In some jurisdictions, signs or other factors can determine whether you can be charged with trespassing, but as far as this game goes, the lack of signage is not determinative. I sometimes think about the incident several years ago where a group of cachers were shot at (and shot) by the property owner. The land may not have been signed, but the Google maps for that area showed the parcels and thev owners name was on the online GIS parcel records. So an extra minute might have averted a lot of problems for both the cachers and the owner.

 

In general it is a good idea to know the nature of the land and the policies governing it before placing a cache. The assumption that if you can place a cache if you have access to the location does not always hold true, whether it be a parking lot, a national park, or a canal.

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The information on the cache page seems to suggest that the cache owner knew about public access availability...."Please note, this cache can only be legally accessed during the winter months when the Fourth Welland Canal has been drained for it's yearly maintenance.Any other time of year is prohibited and those who do not respect this limitation, may be subject to penalty of law."

 

Maybe he did call the Seaway. Maybe he was given the wrong information, or maybe 4wheelin_fool is correct...the property owner may be embarrassed and just be trying to prevent a lawsuit.

 

Or maybe if everyone wasn't in such a rage to excuse poor cache owner behaviour, fewer cache owners would work on the assumption that they can put caches wherever they please.

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OK, I've found the other cache on the "island" (which is actually a lock from the abandoned 3rd Welland Canal), and I kid you not, I found it with a Groundspeak volunteer reviewer! He doesn't hide his identity, obviously. There are no restrictions that I or anyone else know about for Geocaching on Seaway lands. If you don't believe me, look at the cache map available from archived cache page. I think they just charged him with trespass to be pricks. :unsure:

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OK, I've found the other cache on the "island" (which is actually a lock from the abandoned 3rd Welland Canal), and I kid you not, I found it with a Groundspeak volunteer reviewer! He doesn't hide his identity, obviously. There are no restrictions that I or anyone else know about for Geocaching on Seaway lands. If you don't believe me, look at the cache map available from archived cache page. I think they just charged him with trespass to be pricks. :unsure:

 

The absence of explicit restriction is not the same thing as permission.

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OK, I've found the other cache on the "island" (which is actually a lock from the abandoned 3rd Welland Canal), and I kid you not, I found it with a Groundspeak volunteer reviewer! He doesn't hide his identity, obviously. There are no restrictions that I or anyone else know about for Geocaching on Seaway lands. If you don't believe me, look at the cache map available from archived cache page. I think they just charged him with trespass to be pricks. :unsure:

 

The absence of explicit restriction is not the same thing as permission.

 

I don't know, man. Why would the cache owner or the publishing reviewer think this one would be any different than any Welland Canal cache? I'll bet there are over 100 of them. And the Welland Canal is only like 30 miles long. :)

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OK, I've found the other cache on the "island" (which is actually a lock from the abandoned 3rd Welland Canal), and I kid you not, I found it with a Groundspeak volunteer reviewer! He doesn't hide his identity, obviously. There are no restrictions that I or anyone else know about for Geocaching on Seaway lands. If you don't believe me, look at the cache map available from archived cache page. I think they just charged him with trespass to be pricks. :unsure:

 

The absence of explicit restriction is not the same thing as permission.

 

I don't know, man. Why would the cache owner or the publishing reviewer think this one would be any different than any Welland Canal cache? I'll bet there are over 100 of them. And the Welland Canal is only like 30 miles long. :)

 

I don't hold the reviewer responsible, I hold the cache owner responsible. The fact that other caches are hidden nearby is no excuse - this "monkey see, monkey do" attitude is exactly why things like this end up happening.

 

The Welland Canal is just a small part of a substantially larger system of waterways.

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I don't know, man. Why would the cache owner or the publishing reviewer think this one would be any different than any Welland Canal cache? I'll bet there are over 100 of them. And the Welland Canal is only like 30 miles long. :)

 

Are the others in areas that are normally not accessible or that require you to go outside of the standard public access areas? Have the others gotten permission? Perhaps it is one of those areas where things are fine until they are not. Or like private property caches that are routinely published without incident until the owner complains or the bomb squad is called.

 

At least one visitors site I saw on the web distinguished between the canal itself (closed Dec. to March) and the parkway (open all year), so there may be a distinction that applies here. In any event, if I were a land manager I would be very hesitant to give permission to a cache that brought visitors to a place where there are large holes.

 

This does not mean that the cacher was properly charged with trespassing or whether the officials might be "pricks" if he is charged. It might depend on the signage at the ordinary point of access to the general canal area - are there any restrictions or large red dots? The kind of sign about staying on walkways or not entering the actual canal that is easy to not think about? If so it is your burden under the Trespass to Property Act to show you have express permission.

 

In any case, they likely were upset at the rescue and might have warned in other circumstances. From my reading of the article it might still be just a threat - he was told he would be facing charges but perhaps that statement was more to deter future visitors than a final decision. Has he actually been charged?

Edited by geodarts
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I don't know, man. Why would the cache owner or the publishing reviewer think this one would be any different than any Welland Canal cache? I'll bet there are over 100 of them. And the Welland Canal is only like 30 miles long. :)

 

Are the others in areas that are normally not accessible or that require you to go outside of the standard public access areas? Have the others gotten permission? Perhaps it is one of those areas where things are fine until they are not. Or like private property caches that are routinely published without incident until the owner complains or the bomb squad is called.

 

At least one visitors site I saw on the web distinguished between the canal itself (closed Dec. to March) and the parkway (open all year), so there may be a distinction that applies here. In any event, if I were a land manager I would be very hesitant to give permission to a cache that brought visitors to a place where there are large holes.

 

This does not mean that the cacher was properly charged with trespassing or whether the officials might be "pricks" if he is charged. It might depend on the signage at the ordinary point of access to the general canal area - are there any restrictions or large red dots? The kind of sign about staying on walkways or not entering the actual canal that is easy to not think about? If so it is your burden under the Trespass to Property Act to show you have express permission.

 

In any case, they likely were upset at the rescue and might have warned in other circumstances. From my reading of the article it might still be just a threat - he was told he would be facing charges but perhaps that statement was more to deter future visitors than a final decision. Has he actually been charged?

 

Has he actually been charged? I don't know, I'll keep an eye on it. The cache sits only 19.5 miles from my home coordinates, but it's a different Country, and I don't normally follow their media. Why would I? :P

 

Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

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Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

 

Is it really *that* inconceivable that some areas are off-limits, while others are not?

 

Apparently, this area was off-limits for good reason!

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The Thorold and St. Catharines, Ont., fire departments, along with police and paramedics were involved

 

All they needed was a rope and harness, but sent out a massive rescue effort anyhow. It's a good thing he wasn't injured. Without any signage, I don't know how he trespassing charge will be handled. It's entirely likely that someone said it was fine to go there before it happened, and the incident caused them to evaluate the area more closely. Likely the area will have signage by next year and the pending charges will be dropped, but they stand in the meantime to prevent any more visitors from going.

Edited by 4wheelin_fool
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[quote name=

mp='1425332757' post='5478719]

Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

 

Is it really *that* inconceivable that some areas are off-limits, while others are not?

 

Apparently, this area was off-limits for good reason!

 

Seaway has told Students and Educators:

 

For your own safety, recreational activities such as swimming, water skiing, fishing, and diving are strictly prohibited in all Seaway canals, channels, pleasure craft docks, locks, weirs, and their approaches.

 

These prohibitions are enforced under the Canada Marine Act as well as under various regulations governing Seaway property. Violators will be subject to substantial fines.

 

Does this describe the area in question? The CO apparently believed that such restrictions did not apply when the canal was otherwise closed and that area was drained - although this version of the article states, "As it turns out, the geocache is illegal to access year-round."

Assuming (without researching) that regulations and laws are not adequate notice without signage (and the area is not fenced), I hope that if charges are pressed it could be established that the area was not signed at the proper access points or that the CO had some basis to state otherwise. Otherwise, they seem rather touchy about it and it could be expensive.

Edited by geodarts
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Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

Apparently, this area was off-limits for good reason!

 

Then, it probably should have been posted.

 

Around here, you're not really trespassing unless you have been first warned, either verbally, or by a sign, and yet refuse to leave.

 

Whatever happened to the concept of implicit permission? It sounds as though caches have been placed & approved here for quite some time before this. That would qualify as implicit permission according to my understanding.

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It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Not always true. In my county in Washington state, and I think the others here in Puget Sound, the property extends to mean low tide. Below this level is state land. So legally you can't walk on the property between high tide and mean low tide, it is private land.

 

RI:

 

"For the purposes of determining public privileges, case law has interpreted the landward boundary of the shore to be the mean-high water mark, or mean high-tide, as the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, not simply the high-water mark at any moment."

You may want to check your laws again. That high water mark statement is not always true. Here in Minnesota no such thing as trespass allowed in the ordinary high water mark.

That is the area that the DNR has control over as to what the private property owner may do. If you step out of the water on to private property then you are trespassing.

In Colorado it is much worse. I went fishing there once and found that the law is such that you may not even touch the river or stream bottom.

Private property includes the bottom of waterways. The only way that you could touch the bottom is if the land next to the river was public.

You may not even touch the bottom with a paddle. I have read of cases where the property owner placed some one under arrest for that and won in court.

And when they place you under arrest out there a gun is involved. As for me I stayed on public streams.

So do not assume that shore land is trespassable.

Link to comment

[quote name=

mp='1425332757' post='5478719]

Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

 

Is it really *that* inconceivable that some areas are off-limits, while others are not?

 

Apparently, this area was off-limits for good reason!

 

Seaway has told Students and Educators:

 

For your own safety, recreational activities such as swimming, water skiing, fishing, and diving are strictly prohibited in all Seaway canals, channels, pleasure craft docks, locks, weirs, and their approaches.

 

These prohibitions are enforced under the Canada Marine Act as well as under various regulations governing Seaway property. Violators will be subject to substantial fines.

 

Does this describe the area in question? The CO apparently believed that such restrictions did not apply when the canal was otherwise closed and that area was drained - although this version of the article states, "As it turns out, the geocache is illegal to access year-round."

 

Assuming (without researching) that regulations and laws are not adequate notice without signage, I hope that if charges are pressed it could be established that the area was not signed at the proper access points or that the CO had some basis to state otherwise. Otherwise, they seem rather touchy about it and it could be expensive.

 

That's a completely different story now. Without signs the finder might get cut a break, but the CO certainly should have realized from the beginning that it was off limits.

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Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

Apparently, this area was off-limits for good reason!

 

Then, it probably should have been posted.

 

Around here, you're not really trespassing unless you have been first warned, either verbally, or by a sign, and yet refuse to leave.

 

Whatever happened to the concept of implicit permission? It sounds as though caches have been placed & approved here for quite some time before this. That would qualify as implicit permission according to my understanding.

Yes you are correct to a point. If a fence is visable or crop residue or a crop or cattle. Really anything agricultural does not need to be posted. Trespass is automatically forbidden by law.

Non Ag property must be posted to prohibit trespass. As you said when told that you are trespassing you need to leave. If you find that some woods are surrounded by a barbed wire fence,

then assume it is Ag property.

Link to comment

[quote name=

mp='1425332757' post='5478719]

Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

 

Is it really *that* inconceivable that some areas are off-limits, while others are not?

 

Apparently, this area was off-limits for good reason!

 

Seaway has told Students and Educators:

 

For your own safety, recreational activities such as swimming, water skiing, fishing, and diving are strictly prohibited in all Seaway canals, channels, pleasure craft docks, locks, weirs, and their approaches.

 

These prohibitions are enforced under the Canada Marine Act as well as under various regulations governing Seaway property. Violators will be subject to substantial fines.

 

Does this describe the area in question? The CO apparently believed that such restrictions did not apply when the canal was otherwise closed and that area was drained - although this version of the article states, "As it turns out, the geocache is illegal to access year-round."

 

Assuming (without researching) that regulations and laws are not adequate notice without signage, I hope that if charges are pressed it could be established that the area was not signed at the proper access points or that the CO had some basis to state otherwise. Otherwise, they seem rather touchy about it and it could be expensive.

 

That's a completely different story now. Without signs the finder might get cut a break, but the CO certainly should have realized from the beginning that it was off limits.

 

Even if the CO was genuinely unaware of the law, a quick phone call to the Seaway commission would have cleared it up.

Link to comment
The Thorold and St. Catharines, Ont., fire departments, along with police and paramedics were involved

 

All they needed was a rope and harness, but sent out a massive rescue effort anyhow. It's a good thing he wasn't injured. Without any signage, I don't know how he trespassing charge will be handled. It's entirely likely that someone said it was fine to go there before it happened, and the incident caused them to evaluate the area more closely. Likely the area will have signage by next year and the pending charges will be dropped, but they stand in the meantime to prevent any more visitors from going.

 

Yeah, I think the authorities are just ticked off at their massive rescue effort, which didn't have to be a massive rescue effort. Dude is all like "send one Thorold volunteer fireman with a rope, and I'm good". :laughing: I predict the charges will be dropped. And my best wishes for the 100+ caches along the Welland Canal.

Link to comment
The Thorold and St. Catharines, Ont., fire departments, along with police and paramedics were involved

 

All they needed was a rope and harness, but sent out a massive rescue effort anyhow. It's a good thing he wasn't injured. Without any signage, I don't know how he trespassing charge will be handled. It's entirely likely that someone said it was fine to go there before it happened, and the incident caused them to evaluate the area more closely. Likely the area will have signage by next year and the pending charges will be dropped, but they stand in the meantime to prevent any more visitors from going.

 

Yeah, I think the authorities are just ticked off at their massive rescue effort, which didn't have to be a massive rescue effort. Dude is all like "send one Thorold volunteer fireman with a rope, and I'm good". :laughing: I predict the charges will be dropped. And my best wishes for the 100+ caches along the Welland Canal.

 

I doubt that the caches *along* the canal pose the same issues as a cache that required people to unlawfully enter the canal.

Link to comment

It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Not always true. In my county in Washington state, and I think the others here in Puget Sound, the property extends to mean low tide. Below this level is state land. So legally you can't walk on the property between high tide and mean low tide, it is private land.

 

RI:

 

"For the purposes of determining public privileges, case law has interpreted the landward boundary of the shore to be the mean-high water mark, or mean high-tide, as the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, not simply the high-water mark at any moment."

You may want to check your laws again. That high water mark statement is not always true. Here in Minnesota no such thing as trespass allowed in the ordinary high water mark.

That is the area that the DNR has control over as to what the private property owner may do. If you step out of the water on to private property then you are trespassing.

In Colorado it is much worse. I went fishing there once and found that the law is such that you may not even touch the river or stream bottom.

Private property includes the bottom of waterways. The only way that you could touch the bottom is if the land next to the river was public.

You may not even touch the bottom with a paddle. I have read of cases where the property owner placed some one under arrest for that and won in court.

And when they place you under arrest out there a gun is involved. As for me I stayed on public streams.

So do not assume that shore land is trespassable.

 

No need to check the law for RI again.

Link to comment

It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Not always true. In my county in Washington state, and I think the others here in Puget Sound, the property extends to mean low tide. Below this level is state land. So legally you can't walk on the property between high tide and mean low tide, it is private land.

 

RI:

 

"For the purposes of determining public privileges, case law has interpreted the landward boundary of the shore to be the mean-high water mark, or mean high-tide, as the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, not simply the high-water mark at any moment."

You may want to check your laws again. That high water mark statement is not always true. Here in Minnesota no such thing as trespass allowed in the ordinary high water mark.

That is the area that the DNR has control over as to what the private property owner may do. If you step out of the water on to private property then you are trespassing.

In Colorado it is much worse. I went fishing there once and found that the law is such that you may not even touch the river or stream bottom.

Private property includes the bottom of waterways. The only way that you could touch the bottom is if the land next to the river was public.

You may not even touch the bottom with a paddle. I have read of cases where the property owner placed some one under arrest for that and won in court.

And when they place you under arrest out there a gun is involved. As for me I stayed on public streams.

So do not assume that shore land is trespassable.

 

:blink: WOW! :blink:

Edited by knowschad
Link to comment
The Thorold and St. Catharines, Ont., fire departments, along with police and paramedics were involved

 

All they needed was a rope and harness, but sent out a massive rescue effort anyhow. It's a good thing he wasn't injured. Without any signage, I don't know how he trespassing charge will be handled. It's entirely likely that someone said it was fine to go there before it happened, and the incident caused them to evaluate the area more closely. Likely the area will have signage by next year and the pending charges will be dropped, but they stand in the meantime to prevent any more visitors from going.

 

Yeah, I think the authorities are just ticked off at their massive rescue effort, which didn't have to be a massive rescue effort. Dude is all like "send one Thorold volunteer fireman with a rope, and I'm good". :laughing: I predict the charges will be dropped. And my best wishes for the 100+ caches along the Welland Canal.

 

I doubt that the caches *along* the canal pose the same issues as a cache that required people to unlawfully enter the canal.

 

The cache (and dozens of others) are located near what they refer to as pondage areas along the canal. All that water has to go somewhere when they open or close locks. The canal is drained in the winter, making these areas accessible to Geocachers, hikers and dog walkers. I will say again, I've never observed a no trespassing sign anywhere on Seaway lands.

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Oh gosh, there are no "no trespassing" signs ANYWHERE on Seaway authority property that I've ever seen. And it's far from the only cache in what I would describe as being in "remote areas" on Seaway property. Hikers do go into these areas, it's not just Geocachers. Yeah, it's not a bike path along the main Welland Canal, but people do use these lands for recreational purposes.

Apparently, this area was off-limits for good reason!

 

Then, it probably should have been posted.

 

Around here, you're not really trespassing unless you have been first warned, either verbally, or by a sign, and yet refuse to leave.

 

Whatever happened to the concept of implicit permission? It sounds as though caches have been placed & approved here for quite some time before this. That would qualify as implicit permission according to my understanding.

Yes you are correct to a point. If a fence is visable or crop residue or a crop or cattle. Really anything agricultural does not need to be posted. Trespass is automatically forbidden by law.

Non Ag property must be posted to prohibit trespass. As you said when told that you are trespassing you need to leave. If you find that some woods are surrounded by a barbed wire fence,

then assume it is Ag property.

 

How well does that barbed wire fence have to be maintained for me to assume that it is marking private property?

 

[ETA: That may be going too far off topic. ]

Edited by knowschad
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It seems similar to costal areas. High tide indicates where the property line starts, and the place between low tide and high tide is usually legally accessible.

Not always true. In my county in Washington state, and I think the others here in Puget Sound, the property extends to mean low tide. Below this level is state land. So legally you can't walk on the property between high tide and mean low tide, it is private land.

 

RI:

 

"For the purposes of determining public privileges, case law has interpreted the landward boundary of the shore to be the mean-high water mark, or mean high-tide, as the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, not simply the high-water mark at any moment."

You may want to check your laws again. That high water mark statement is not always true. Here in Minnesota no such thing as trespass allowed in the ordinary high water mark.

That is the area that the DNR has control over as to what the private property owner may do. If you step out of the water on to private property then you are trespassing.

In Colorado it is much worse. I went fishing there once and found that the law is such that you may not even touch the river or stream bottom.

Private property includes the bottom of waterways. The only way that you could touch the bottom is if the land next to the river was public.

You may not even touch the bottom with a paddle. I have read of cases where the property owner placed some one under arrest for that and won in court.

And when they place you under arrest out there a gun is involved. As for me I stayed on public streams.

So do not assume that shore land is trespassable.

 

A long time ago I used to participate in a flyfishing forum and this was a hotly debated topic and a Colorado land owner was an active participant. He lived on a river that was frequently used by canoeist and float tubers that were less than respectful about private property and claimed that the had to pick up beer cans tossed on his property almost every weekend. Colorado's stream access laws protect land owners more than in most states so it's probably not the best example for what the laws are on these canals.

 

 

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Navigable waterways (per US laws) are considered public property. The definition of what constitutes a "navigable" waterway can be fine tuned by states in order to set law on a state level. High water/low water level marks (established in a manner like RI's guidelines) are established by each state and in the absence of an establishment, the default has always been the high water level mark, established on the federal level. The state of OH has established the low level water mark as the end of private property and the start of public property on navigable waterways (per a Lake Erie case). IN and KY have the high level water mark as the end of public property and the start of private property. The ONLY streams and creeks that can be owned privately, as far as I can tell in these three states, would be ones that would NOT be considered navigable. As to Canadian law, I haven't done any research so can't cite the relevant laws.

 

As to the reference about the Seaway Canal and prohibitions, ALL of them are nautical based in nature. Hiking, camping, and other outdoor activities that aren't nautical in nature aren't specifically prohibited, even though there are times when there is NO water in the specified area and nautical guidelines can't be enforced. Either they thought it wasn't worth specifying because no one would do it (or they didn't even consider it to be an issue worth addressing), or it's allowed since nautical traffic would not be affected. It's an interesting "problem".

Edited by coachstahly
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The cache (and dozens of others) are located near what they refer to as pondage areas along the canal. All that water has to go somewhere when they open or close locks. The canal is drained in the winter, making these areas accessible to Geocachers, hikers and dog walkers. I will say again, I've never observed a no trespassing sign anywhere on Seaway lands.

 

I know how canals work, having lived along the Trent-Severn and then the Rideau system for my entire life. It's common knowledge that entering the actual canal is prohibited in both of those systems (with the exception of skating/boating), and those canals aren't even used for shipping.

 

They might not put a fence or a sign on an island in the canal telling me it's off limits, because the canal itself *is* the barrier - it's illegal to be on it.

 

Regardless of signage or fencing, it is always the cache owner's responsibility to be certain that cache placement is allowed. You just don't know until you check, and the presence of other geocaches nearby is not a guarantee.

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As to the CO rules, Mn-treker's point about private property and navigable waterways is based on case law, but old case law and if challenged, would probably be reversed in today's courts. The state and courts have NOT defined navigable waterways. There are 2 rulings (1912 and 1913) that currently "establish" private ownership of waterways (the land anyway), although the manner in which it was done would probably NOT pass legal tests today. They both stated, in the written comments about the decision by the judge, that there are NO navigable waterways in CO, meaning that the LAND (not the water which flows over it) in the waterways is considered private property. However, it's unlikely that a challenge to this concept would fail as the Colorado river has been ruled a navigable waterway in other states, specifically a case that was settled by the Supreme Court, Arizona vs. California - 1931.

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As to the CO rules, Mn-treker's point about private property and navigable waterways is based on case law, but old case law and if challenged, would probably be reversed in today's courts. The state and courts have NOT defined navigable waterways. There are 2 rulings (1912 and 1913) that currently "establish" private ownership of waterways (the land anyway), although the manner in which it was done would probably NOT pass legal tests today. They both stated, in the written comments about the decision by the judge, that there are NO navigable waterways in CO, meaning that the LAND (not the water which flows over it) in the waterways is considered private property. However, it's unlikely that a challenge to this concept would fail as the Colorado river has been ruled a navigable waterway in other states, specifically a case that was settled by the Supreme Court, Arizona vs. California - 1931.

 

Yeah, we're not talking about an ocean or a lake or a river here. We're talking about a major shipping canal where the water level is controlled, and there are gigantic ships navigating a space that is barely wide enough to hold them.

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As to the reference about the Seaway Canal and prohibitions, ALL of them are nautical based in nature. Hiking, camping, and other outdoor activities that aren't nautical in nature aren't specifically prohibited, even though there are times when there is NO water in the specified area and nautical guidelines can't be enforced. Either they thought it wasn't worth specifying because no one would do it (or they didn't even consider it to be an issue worth addressing), or it's allowed since nautical traffic would not be affected. It's an interesting "problem".

 

I agree that caching was not contemplated in that area, but under the Ontario law, notice is a rather broad concept. "Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only." So I suppose notice that the canal is open for nautical traffic at certain times of the year might be considered notice that all other uses are prohibited.

 

Given the discussion about Colorado law, my general advice is to always know the law pertaining to the local jurisdiction -- particularly if there are questionable areas that you like to explore. In my state, some forms of trespassing require no notice or request to leave, others do. As far as I can tell, the present incident is unfortunate because the cacher likely would not have been charged had not the rescue team been sent out. But it is also likely that he would not have been in a position to be charged had a cache not been placed without permission.

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Yeah, we're not talking about an ocean or a lake or a river here. We're talking about a major shipping canal where the water level is controlled, and there are gigantic ships navigating a space that is barely wide enough to hold them.

I understand that, but there's NO water in it at certain times of the year. The area in discussion is clearly not a navigable waterway at that point in time, nor is it the actual canal, but instead a drainage area around the canal. My response wasn't to clarify rules for THIS situation, but instead for Mn-treker's comment about Colorado.

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I don't hold the reviewer responsible, I hold the cache owner responsible. The fact that other caches are hidden nearby is no excuse - this "monkey see, monkey do" attitude is exactly why things like this end up happening.

Actually, I would hold the reviewer responsible too, but to a FAR less extent. The CO is supposed to make sure permission is granted. On the write up provided, it appears that there is a specified time that a cacher can legally access the cache (when the pondage area is drained). Considering how much information we are supposed to provide to the reviewer, if there was any possible chance that it might be illegal to go there at ANY time, I would assume it would at least raise a red flag to the one reviewing the cache. I'm guessing/hoping that the reviewer would ask for more clarification. I also understand that the reviewer can only go on what the CO provides, but if I were looking at a particular cache (not that I'm a reviewer but what I would consider if I were a reviewer) where legality of access is being questioned at ANY time, I'd be certain to have ALL the bases covered and wouldn't even consider publishing it until I was certain the cacher could legally find the cache at the specified time. If the reviewer published the cache because others are hidden nearby, they're just as much at fault as the cacher who placed the cache and thought it was okay for the same reason. All the uncertainty about whether or not a cacher can legally get to this cache tells me that NEITHER party clarified this point well enough. Should this truly be an illegal placement on private property, the CO is primarily at fault, but the reviewer has to share just a little of the fault too.

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Yeah, I think the authorities are just ticked off at their massive rescue effort, which didn't have to be a massive rescue effort. Dude is all like "send one Thorold volunteer fireman with a rope, and I'm good". :laughing: I predict the charges will be dropped. And my best wishes for the 100+ caches along the Welland Canal.

 

It's a completely different story if boating, swimming, and other recreational activities are prohibited at all times. The cache owner certainly should have known that there may have been a problem entering the drained canal area. Under this type of restriction, the charges may be substantial and unlikely to be dropped, especially with the rescue effort. He may have to pay a large fine, based on trusting the judgement of other geocachers and the CO. The site's TOU protects the website, not the cache owners. In this case, the cache owner certainly mislead the finder into believing that it had legal access, when it clearly didn't. I would say responsibility lies with both of them.

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