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


Ma & Pa
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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.

 

Narcissa does make a good point. Unlike Arthur Fonzarelli, I can admit when I'm Wro. Wr-Wr-Wr-. Wro. I can't believe I still remember that episode. :P

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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.

True the water has been ruled a navigable water way. However in some states the land under the water and on the shore may not be trespass-able.

This has been in the courts and not long ago. Again here in Minnesota it has been established that you may walk in a stream that goes through a farm property.

You may not step out of it. There have been some property owners that have tried to arrest fisherman in the stream only to get into trouble themselves.

I am aware that Montana is also a state that prohibits trespass on stream and river bottoms that pass through private property.

Though I have also read that they are trying to change that law. My point is that you should not assume that a waterway is trespass-able.

Most are but check first, there usually are good leagle reasons to prohibit trespass. I have personally placed trespassers under arrest in a stand of cattails.

They assumed they could trespass claiming water. Big mistake Cattails are classified as wet-land, even when in a lake. Property line went all the way out to the waters edge.

The cattails where posted. Trespassers lost there shotguns for that too.

I would like to know why people feel that they can go anyplace they please with out checking. Here in our geocaching community we have had a few trespass issues.

A few geocaches placed on posted property, no permission given. That person refused to check even though they saw the signs. their attitude was that, there was no way it could be private.

DUH!! it was posted. With todays information there is no excuse, just go to the county website and look for a GIS map. If no GIS system for that county then get a platt book.

When you have the correct info that you need you stay out of trouble.

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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. ]

That depends! WOW a great big if huh. Nice and new looking or maybe old and maintained. Stay out!

Really old and broke down, again a big if. It would all depend on the mood the judge is in :D

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The private record shows that the publishing reviewer double-checked with a colleague prior to publication. It would appear that they found the CO's explanation on the cache page to be persuasive. It certainly sounds authoritative, although apparently mistaken given the benefit of hindsight.

 

When a CO's writeup demonstrates that thought has been given to access and legality, it becomes easier for the reviewer to assume that adequate permission was obtained. In the absence of a land manager having a published geocaching policy, many caches are listed based on the concept of assumed permission. Reviewers are not guarantors or insurers of permission; this duty never leaves the cache owner.

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The private record shows that the publishing reviewer double-checked with a colleague prior to publication. It would appear that they found the CO's explanation on the cache page to be persuasive. It certainly sounds authoritative, although apparently mistaken given the benefit of hindsight.

 

When a CO's writeup demonstrates that thought has been given to access and legality, it becomes easier for the reviewer to assume that adequate permission was obtained. In the absence of a land manager having a published geocaching policy, many caches are listed based on the concept of assumed permission. Reviewers are not guarantors or insurers of permission; this duty never leaves the cache owner.

No blame on reviewers here. This is plain and simple the COs fault all the way.

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The private record shows that the publishing reviewer double-checked with a colleague prior to publication. It would appear that they found the CO's explanation on the cache page to be persuasive. It certainly sounds authoritative, although apparently mistaken given the benefit of hindsight.

 

When a CO's writeup demonstrates that thought has been given to access and legality, it becomes easier for the reviewer to assume that adequate permission was obtained. In the absence of a land manager having a published geocaching policy, many caches are listed based on the concept of assumed permission. Reviewers are not guarantors or insurers of permission; this duty never leaves the cache owner.

No blame on reviewers here. This is plain and simple the COs fault all the way.

 

Everyone makes mistakes, and if the reviewer learned something from it, then it's not necessarily a mistake. What's important, is if the CO intentionally misled the reviewer along with geocachers into believing that entering the area was ok, or was it due to an honest false belief? Knowing that the area was normally restricted, I find it difficult to believe that it was accidental. Can't say that it's over and done with, when charges are pending and a negative news article is looming online for the public to peruse.

 

Went to do one hidden on top of a grain silo a few months ago, and the area was posted along with a bright orange unsafe structure note. http://coord.info/GC4T2CN

I don't have any idea how it can be considered a public area, and how these things get published.

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Everyone makes mistakes, and if the reviewer learned something from it, then it's not necessarily a mistake. What's important, is if the CO intentionally misled the reviewer along with geocachers into believing that entering the area was ok, or was it due to an honest false belief? Knowing that the area was normally restricted, I find it difficult to believe that it was accidental. . . .

 

I don't have any idea how it can be considered a public area, and how these things get published.

 

From various comments on the local news page, it seems that people sometimes go to the area when the canal is closed and the pond is drained. One person even explored a tunnel there, which might be interesting to me. So I think hat the description on the cache page was done in good faith. But there are some areas where assumptions about access can get you into trouble -- particularly given the local laws (if some uses are permitted, everything else is prohibited). And assumed permission - that a container can be left if you have access to an area - often falls short of actual permission.

 

If the CO here had checked a little more carefully, the potential for a trespassing charge might have been avoided. If the CO in Southern California had not assumed that certain land was public and looked at the parcels on Google, a cacher might not have been shot and the property owner sentenced to a 7+ year prison term. If a CO (and reviewer) near where I live had taken no trespassing signs a little more seriously, another cacher might have avoided an unpleasant encounter with the property owner.

 

There are some things that make me wonder -- a cache with a description that warned people not to go there if they had an aversion to an encounter with law enforcement might have signaled that it was behind several signs that trumped the hole in the fence. But overall, I think that some questionable caches get placed and published because access and permission is assumed. If there is a lesson here, it is that it pays to double or triple check our assumptions.

Edited by geodarts
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Everyone makes mistakes, and if the reviewer learned something from it, then it's not necessarily a mistake. What's important, is if the CO intentionally misled the reviewer along with geocachers into believing that entering the area was ok, or was it due to an honest false belief? Knowing that the area was normally restricted, I find it difficult to believe that it was accidental. . . .

 

I don't have any idea how it can be considered a public area, and how these things get published.

 

From various comments on the local news page, it seems that people sometimes go to the area when the canal is closed and the pond is drained. One person even explored a tunnel there, which seems interesting to me. So I think hat the description on the cache page was done in good faith. But there are some areas where assumptions about access can get you into trouble -- particularly given the local laws (if some uses are permitted, everything else is prohibited). And assumed permission - that a container can be left if you have access to an area - often falls short of actual permission.

 

If the CO here had checked a little more carefully, the trespassing charge might have been avoided. If the CO in Southern California had not assumed that certain land was public and looked at the parcels on Google, a cacher might not have been shot and the owner sentenced to a 7+ year prison term. If a CO near where I live had taken no trespassing signs a little more seriously, another cacher might have avoided an unpleasant encounter with the property owner.

 

There are some things that make me wonder -- a cache with a description that warned people not to go there if they had an aversion to an encounter with law enforcement might have signaled that it was behind several signs that trumped the hole in the fence. But overall, I think that caches get placed and published because access and permission is assumed. If there is a lesson here, it is that it pays to double or triple check our assumptions.

 

Yes it's likely that they didn't care too much if anyone went there until there is an injury, and without the charges, the cacher may feel enabled to have the property owner pay for the rescue. In any case, the CO was aware the area was normally off limits, and it's plainly written on the canal web page.

 

As far as the shooting in CA, I heard that it was on private property with the owners permission, and a renter who was unaware of the permission is the one who shot the kid in the leg, unless there was another one. :ph34r:

Edited by 4wheelin_fool
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As far as the shooting in CA, I heard that it was on private property with the owners permission, and a renter who was unaware of the permission is the one who shot the kid in the leg, unless there was another one. :ph34r:

 

There is a lengthy forum thread on that incident. The cachers affected (and apparently the CO) thought it was on public land, but during the course of the discussion, a couple of us checked the google maps on the cache page to look at the parcels and then tracked down who owned the property (the Heim family trust). The shooter (Manuel Heim) was identified as the owner in court records, and was acquitted of two of the assaults (including that which ended up hitting the young man in the leg), but still has a lengthy sentence at 85% time. Without doing the math, he probably has a couple of more years to serve. He is 74 so sometimes I check his status just to see if he is still alive.

 

The CO put out a replacement cache, which is also on private property -- although it is owned by a cement company that does not seem as engaged as Mr. Heim. Although Heim is responsible for his actions, I cannot help but think the whole thing was avoidable with a simple look at a map that is on the cache page. It is usually the example that occurs to me when I think about needing to double check assumptions. The present thread will be another one.

 

I trust that both of these examples show the extreme end of things, and am glad that it did not turn out worse for all. In the few times I have been at caches where the CO erroneously had assumed it was public land, the property owners were reasonable (as long as I assured them that I was leaving and the cache would be removed).

Edited by geodarts
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