A Hiker/Kayaker’s Guide to Trespassing in New York State

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Statement

Note
NYFalls.com in no way encourages its users to knowingly enter private property. Posting of information (written or imagery) obtained by knowingly trespassing may be removed at the website moderators’ discretion.

NYFalls.com is not an authority for information about the ownership of land in NY State. Although we make an effort to post accurate and timely data, we cannot guarantee the validity of that data. If you find yourself in a situation where you have misjudged the status of land, we cannot help you. It is up to you to protect yourself, and to know a bit about trespassing law and your responsibilities, and to abide by it. NYFalls.com will not assist you or be held accountable for your actions if you are caught trespassing.

Before You Explore: Research

Seek out information about the ownership of land you are looking to enter and seek out permission for privately owned land. There are many ways to go about this.

  • An easy way to get a rough idea is to ask in our message board. We have a lot of knowledgeable members, who may already have the information you seek. Start there and always ask for a source of their information.
  • Some land is privately owned, but there are conditions for visitation. An example of this would be the State land surrounding Hemlock and Canadice Lakes (for which you need to follow certain rules) and some trails near Zoar Valley (for which you need to be a member of a local conservation organization).
  • Check with the town or county clerk in the area in question. They should have detailed maps outlining privately owned land  They should be able to give you the information you need.
  • Ask the people who live there. Is there a house or business nearby?
  • Make sure the person giving you permission is the actual owner. Don’t accept permission from a neighbor.

Some guidelines for Trespassing Law in NY State

  • NY State trespass law is derived from English common law.
  • A person, who enters private property without honestly knowing the status of the land, is not subject to criminal trespass.
  • According to NY State Penal Law 140.05, to be convicted of trespass it must be proven that the person knew they were on private land (see law below). If you saw a posted sign, read on a website, or heard from someone that the land was not public, this can be held against you.
  • Just because you are unaware of the status of the land, doesn’t make you immune to the law. An officer of the law can, and probably will, remove you from private land. If you come across any indication the land is private, you are obligated to remove yourself immediately.
  • Just because you are unaware of the status of the land, doesn’t mean you can’t be charged and taken to court for trespassing. You may not get convicted, but it will still be a drain on your time and money.
  • Theft or vandalism falls under another section of the law (Section 145) and can lead to felony charges if you enter private property and cause damage.
  • You may not have the right to publish, sell, or promote photos taken while in the act trespassing. There is no law that specifically states this, but some lawyers can easily fit this under damages and you certainly can be sued civilly.
  • There are exceptions to knowingly trespassing if you are traveling by navigable waterways (see below).
  • It’s best to just avoid trespassing altogether. Ignorance is not immunity.

New York State Law

140.05: Trespass

A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation.

Simple trespass is a violation of the law, but not necessarily a criminal charge. 

140.10: Criminal Trespass in the Third Degree

A person is guilty of criminal trespass in the third degree when he
knowingly enters or remains unlawfully in a building or upon real
property

  1. which is fenced or otherwise enclosed in a manner designed to exclude intruders; or 
  2. where the building is utilized as an elementary or secondary school or a children’s overnight camp as defined in section one thousand three hundred ninety-two of the public health law or a summer day camp as defined in section one thousand three hundred ninety-two of the public health law in violation of conspicuously posted rules or regulations governing entry and use thereof; or 
  3. located within a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian or other person in charge thereof; or 
  4. located outside of a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof; or 
  5. where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or 
  6. where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof; or 
  7.  where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no-trespass railroad zone.

Criminal trespass in the third degree is a class B misdemeanor.

140.15: Criminal Trespass in the Second Degree

A person is guilty of criminal trespass in the second degree when:

  1. he or she knowingly enters or remains unlawfully in a dwelling; or 
  2. being a person required to maintain registration under article six-C of the correction law and designated a level two or level three offender pursuant to subdivision six of section one hundred sixty-eight-l of the correction law, he or she enters or remains in a public or private elementary, parochial, intermediate, junior high, vocational or high school knowing that the victim of the offense for which such registration is required attends or formerly attended such school. It shall not be an offense subject to prosecution under this subdivision if: the person is a lawfully registered student at such school; the person is a lawful student participant in a school sponsored event; the person is a parent or a legal guardian of a lawfully registered student at such school and enters the school for the purpose of attending their child’s or dependent’s event or activity; such school is the person’s designated polling place and he or she enters such school building for the limited purpose of voting; or if the person enters such school building for the limited purposes authorized by the superintendent or chief administrator of such school.

Criminal trespass in the third degree is a class A misdemeanor.

140.17: Criminal Trespass in the First Degree

A person is guilty of criminal trespass in the first degree when he
knowingly enters or remains unlawfully in a building, and when, in the
course of committing such crime, he:

  1. Possesses, or knows that another participant in the crime possesses, an explosive or a deadly weapon; or
  2. Possesses a firearm, rifle or shotgun, as those terms are defined in section 265.00, and also possesses or has readily accessible a quantity of ammunition which is capable of being discharged from such firearm, rifle or shotgun; or
  3. Knows that another participant in the crime possesses a firearm, rifle or shotgun under circumstances described in subdivision two.

Criminal trespass in the first degree is a class D felony.

Water Navigation is Different

With paddling becoming an increasingly popular sport, it is important for both landowners and paddlers to be on common ground as far as interpretation of our water navigation laws. Most people have their own ideas as to their rights, and those skewed ideas may get them in trouble.

Guidelines for Water Navigation and Property

  • Our water navigation rights are derived from English common law
  • Persons have the lawful right to freely navigate waterways that are “Navigable-In-Fact” 
    • Navigable-in-fact is loosely defined as the ability of the body of water to transport persons or goods for a distance (anywhere but the originating location). 
    • The definition loosely includes most forms of recreation (Adirondack League Club, Inc. v. Sierra Club, 1998). 
    • The right excludes artificial or improved sections of waterways (stay away from dams and power plants). 
    • If it can be proven that a waterway has not historically been used for navigation, or is not currently being used for recreation, then it may be excluded from those rights. 
    • The waterway can be navigable for only a temporary period (flooding or seasonal conditions) and can still be considered navigable-in-fact. It doesn’t have to navigable for a minimum time… just the time you are using it. 
  • Just because you have the right to navigate a body of water, doesn’t give you the right to do anything else (fish, photograph, hike) although there are some exceptions (see below). 
  • The right of navigation also protects the boater’s ability to portage. If waterfalls, rapids, downed trees, or other obstacles prevent a person from navigating, they have the right to portage (using the most direct route possible) over land of any status. This includes any contact with land in order to navigate further or to ensure the safety of the persons navigating. 
  • Bodies of water completely isolated by private land may also be excluded from that right. You do not have the right to cross private land to reach a public waterway. You must have public access to that waterway. 
  • You do not have the right to use adjacent private property for camping, picnicking, hunting or fishing… you may not be able to do any of that on public property either. 
  • This right does not protect hikers who travel in waterways. 

Tips for Paddlers

  • The land around roads and bridges (roughly 10 feet) is usually owned by the state or county and may be an opportunity to access navigable waterways. 
  • If access of a section of navigable-in-fact waterway is blocked (by fence, rope, posted signs, etc) use caution. It is unlawful for land owners to impede boaters from navigating waterways. But there may be a reason (like a hunting club, shooting range, endangered species area, fishing activity). The best thing to do is call the DEC office responsible for that region and file a complaint. 

Sources

NY State Penal Code, NY State Court of Appeals, NY State DEC website, Lawyer consultation

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