Trespassing in Montana

Many of the most rewarding and/or time-consuming outdoor activities in Montana require venturing out onto Montana’s network of world-famous CD-skipping washboard roads and jeep trails. The barbed-wire fences that tend to line such roads are frequently posted with intermittent “No Trespassing” signs, either store-bought or simply scrawled onto old tires lovingly hung from gnarled fenceposts.

Signs prohibiting trespassing might seem redundant, like the “No Littering” signs on the highway. After all, if hanging signs is a deterrent to wrongdoing, then why stop at littering or trespassing? Why not signs like “No Carjacking” or “No Embezzling”? Or maybe a broader admonition, like “No Lying”?

Sign Language
It turns out that there is a point to all of those unfriendly “No Trespassing” signs. Not only are such signs a convenient method to announce the boundary of private property, they also revoke the public’s privilege to lawfully enter that property. Under Section 45-6-201 of the Montana Code (MCA), if a landowner fails to post a no-trespassing notice, entering the property is not technically trespassing (at least until you refuse to leave after the owner tells you to vamoose).

But having an implied license to enter unposted private property without being arrested is not all it’s cracked up to be. It doesn’t mean you have the right to actually do anything on the property, other than walk around gingerly. Hunting on private property always requires a landowner’s permission, regardless of any failure to post signs, as does pursuing wounded game onto private property.

The utility of posting no-trespassing signs might be dubious considering that a mere sign probably won't keep out people you’d actually like to keep out. The kleptomaniac neighbor kids are going to take your bike regardless of the signs you put up. And no graffiti artist worthy of the title is going to pay any attention to a sign demanding that he knock it off.

It's All Fun and Games Until…
Landowners might be motivated to post no-trespassing signs to avoid being sued by persons injured on their property. This would be a legitimate concern, except that landowners are generally immune from suit under Montana’s Recreational Use statute at §70-16-302, MCA. Under the statute, landowners owe no duty to people using their property for “recreational purposes” in the absence of “willful or wanton misconduct” by the landowner. The recreational use statute also doesn’t distinguish between public and private property, so the state is immune from suit when grizzly bears eat hunters in wilderness areas owned by the public. Landowners are also not liable for injuries caused by the “condition of the property” when the property is used recreationally (and where the user doesn't pay for the privilege). The “condition of the property” has been construed relatively broadly. Courts have held that grizzly bears that ate a hunter in a wilderness area, for example, were part of the condition of that property, precluding a lawsuit against the state for mismanaging the grizzly population.

Definition, Please
The statute also raises a question as to what activities fall under “recreational purpose.” In 1965, the Montana legislature provided a list of such purposes (codified at §70-16-301, MCA), which includes activities like hunting, fishing, boating, swimming, camping, picnicking, pleasure driving, and hiking. Over the years several items have been added, including “spelunking” in 1993, and flying private planes (but only “in relation to private land”), in 2007.

The list of activities is arguably broad enough to include everything, especially considering that hiking is pretty much the same thing as “walking outside,” and “picnicking” is synonymous with “eating outside." Nevertheless, the Montana Supreme Court has held that a plaintiff walking her dog in Great Falls over an unmowed strip of city property alongside a city street could sue the city when she tripped over a piece of barbed wire. Walking to and from her home in a residential neighborhood was held not to be a “recreational purpose.” Conversely, another case held that the family of a student killed on a school field trip was barred from suit because the field trip was recreational despite also being educational. So as a matter of law, field trips are fun; walking the dog is not fun.

So the bottom line is that you should probably consult a lawyer before ever leaving the house.

Alex Roots is an attorney with Landoe, Brown, Planalp & Reida, P.C. in Bozeman.