Lawyers: private property, trespassing...

I recently heard that a friend is being prosecuted for walking through a private property on train tracks (which I don’t think are active anymore). They are trying to stick him with “criminal trespassing” and a $1000 fine. Furthermore, I seem to remember some laws that entail the following: train tracks through private property are state owned and you could actually walk through private properties legally that way (as long as you stayed within a certain (~ft?) range of the train tracks). I’m pretty sure the police scared him a ways off of this legal zone (if it exists). Does he have any defense?

IANAL, but around here I note that the train lines are actually marked as private property of the line in question and are marked as no trespassing. Thus if any private company has a claim on that line, he might well find that he has another trespassing charge against him.

What state? The laws of tresspass vary widely.

I have never heard of such a principle. To the contrary, I’ve often heard of people being charged/prosecuted for trespassing for being on tracks themselves. I’m not aware of any distinction between whether the tracks crossed public or private property. I’m pretty certain the tracks themselves are private property, tho there may be issuers concerning abandoned rights of way.

But I am certainly not an expert on railroad or trespass law.

In general, the government does not own railroad tracks; they belong to whatever railroad company runs the tracks. Abandoned tracks might have reverted to a governmental entity.

If (and I find the story quite unlikely) someone is being prosecuted for criminal trespass, then the prosecution would have to prove presence on property without permission. This will force them to prove the friend was on someone’s property and did not have the permission of the owner to be there. The statute may have other requirements to be met, depending on the state. Your “friend” should invest a small amount of money in an attorney to make sure that he isn’t being incorrectly prosecuted.

I doubt that “flight from law enforcement” confers a privilege to enter other peoples’ property.


From decades-old personal knowledge (my grandfather was a local official for the New York Central R.R. with some authority over such issues):

In the United States, by and large, all active or dormant railbeds are the private property (fee simple or right-of-way) of the railroad companies using them for train service – one exception being the property of Conrail, which is a public-sector corporation. Such companies attempt to prevent people from walking along their rights-of-way for two main reasons: (a) the danger to the persons themselves from passing trains (and often there is no place to get off the railbed to avoid getting hit); (b) the tendency of some people to do malicious things, e.g., pile material on the track, throw a switch that would route the train onto the wrong track, etc.

Abandoned rights-of-way escheat to the adjoining landowners; abandoned fee-simple roadbeds become the property of the taxing jurisdictions. But this requires legal abandonment, not just disuse.

Ordinarily, from what I’ve seen, a railroad company will not cause a prosecution for criminal trespass for simple passage along its rights of way; there needs to be malicious mischief or repeated trespass endangering persons.

How does “open and notorious use” come into play? Suppose hunters and hiker have used a trail for years (which crosses a rail line). Does this “notorious use” then allow people to cross the line, without trespassing?

Good question, Ralph! But your example isn’t a good one: if a public right-of-way, even a trail, crosses a rail line, then the right-of-way extends across the rail line, superseding the private title or right-of-way status of the line itself. A better example would be: for four generations, the people of Smalltown have hiked the half mile outside town along the PD&Q RR tracks to access the emponding of the river just downstream of where the tracks cross it, which is one of the very few places suitable for swimming in the area. The PD&Q changes ownership, and the new owners attempt to prosecute. To what extent has “open and notorious use” by the public for 100 years impinged on their right to protect against trespass?

In Illinois, near Chicago.

Interesting… I think it is now clear to me that he can be defined as a trespasser, but how can it be prosecuted under “criminal trespassing?” He has little money and, of course, doesn’t want to be stuck with the 1000 dollar fine. There is no proof that anything criminal was committed, but when the police found him he was handcuffed at gunpoint. He’s not sure if it is a better move to just apologize in the court room, or to defend himself against that with which he doesn’t agree (the goal being to get out of being fined).

I’m not sure I understand what you mean. It is criminal trespass in that it is trespassing in a manner that is illegal, not that he was trying to do something else that was illegal. It is the trespassing itself that is criminal. Each state words things a bit different even when the laws are basically the same. For instance in New Jersey there is no “rape” statute. That doesn’t mean that rape is legal. It’s just called aggravated sexual assault. In New Jersey “criminal trespass” means entering a structure without permission, one step down from burglary. Entering property which is marked “no trespassing” would be considered “defiant trespass” but it still amounts to the same thing you are describing. Don’t get hung up on the wording.

Wait, “when the police found him he was handcuffed at gunpoint.” :confused: WTF over?
after reading the OP and this post, I feel that either the our poster is not telling us everything, or there are clarity issues here.
Vanna, can I buy a vowel?

He’s probably black, or Arabic.

How about the owner of property, which contains an “attractive nuisance?” (love those legal terms)-to wit: an abandoned quarry (which is now filled with water). The owner has posted “No Trespassing Signs”-even a few "danger-complete with skull and bones). However, young amles have taken to the quarry as a swimming spot. Now, one young man decides to dive off a ledge-and proptly hits an underwater rock-his back is broken. Are you liable for his injuries?

I’m thinking it means, when the police found him trespassing, they handcuffed him at gunpoint.

There are HUGE variations between states. In some states, (California, I think) there is a duty to all tresspassers. In other states, there is only a duty to trespassers you knew about (ie you had seen these people before repeatedly and observed their access path). Finally, in some states there is no duty to tresspassers.

The concept of “attractive nuisance” only applies to children, and applies to things that tend to “lure” children into trespassing, visible from outside the property. Grown adults are supposed to know better. Some states distinguish between a nuisance which is artificially added to the land (like a pool) and one that is natural to the land (a particularly interesting climbing tree).

Or… as the OP hints at… he ran from the police. Running from the police is not usually a good idea, it’s kind of like running from a dog… if you run, they will chase.

A few years ago we had a dandy bunch of lawsuits in Missouri when the state wanted to take over abandoned railroad rights-of-way and build a hiking trail. Adjoining property owners sued because their great-great grandparents had only granted the railroads an easement, not actual ownership. They claimed when the railroads surrendered the rights-of-way, the land should have gone back to the adjoining property owners.

The solution was to create a “rail bank” so the state could build a trail, but the railroads could, at some undefined point in the future, take the land back (and presumably build all new tracks, since they’re gone now.)