This discussion about trails through private property is the opinion of the Trails and Bikeways Council of Greater Redding. The first part is an outline with talking points. The second part discusses in greater detail the obstacles involved in creating a large interconnecting trail system.
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INTRODUCTION—ENHANCING THE REDDING AREA TRAIL SYSTEM
The Redding area is an oasis of natural beauty that offers more opportunities for outdoor recreation than almost any place in the country. It now has a growing trail system that has gained modest national recognition. The Trails and Bikeways Council of Greater Redding (TBC) is a 501 3c nonprofit organization made up of local citizens whose mission is help create a regional world-class trails and bikeways system that links Redding, neighborhood communities, public land and other open space together with non-motorized routes for the benefit of the area’s citizens and visitors. This essay describes the TBC position regarding one of the major barriers to achieving this goal and what can be done to solve this difficult problem. It still is a work in progress, and input from interested parties is to be welcomed.
TRAILS ON PRIVATE PROPERTY-2008
A. Trails and Private Property.
1. Property owner’s objections to the proximity of trails:
a. Trespassing, Disturbing the Peace.
b. Crimes: Vandalism, burglary, assault, etc.
c. Harassment or loss of privacy.
2. Economic and social benefits of neighborhood trails.
a. Increased property value.
b. Increased recreational opportunities.
c. Improved connectivity.
d. Opportunity to exercise for health.
e. Enhancement of a community’s culture and vitality.
3. Truth versus myth about trails.
a. Neighborhood crime rates do not increase after a trail is built in the area.
b. Local trails tend to increase neighborhood property values rather than decrease them.
B. Policies that Encourage the Development Subdivision Trails
1. Government agencies and developers should consider trails as amenities that enhance new development in the same way as paved roads and underground utilities have historically done.
2. When a subdivision includes public trails within its borders, the trails should be in place and being used before a single lot is sold. This will avoid a lot of conflict downstream.
C. Encouraging Public Trail Access to Private Property.
1. A property owner would not and should not be expected to allow public access across his property if it had negative social and economic consequences.
2. Land owners would be far more willing to allow public access to their private property if they believed that they were going to benefit economically and not suffer loss of privacy or risk of economic loss or injury from that public access.
3. Therefore, governments, non-government agencies, or private citizens or companies, whoever is paying the bill and has an interest in maintaining a quality trail system would promote a government policy that would encourage owners to allow public access across their property. An outside agency (usually a government) utilizes policy that ensures that the property owner:
a. Receives an economic benefit for public use of his property – i.e. discount or reduction of property taxes, a charitable gift tax deduction, outright purchase of utilized lands, other economic benefits.
b. The agency would be willing to indemnify and defend the land owner if he were named in a lawsuit relating to public use of his land.
c. The agency would ensure that the property owner had an adequate privacy and intrusion barrier placed between the owner’s domicile and the trail at no expense to the land owner.
4. Revocable Easement: If the trail easement did not work out for the landowner, and no workable solution could be found for the problem, then the easement could be revoked, the penalty being the loss of economic benefit from the donation of the trail easement.
OBSTACLES TO A TRAILS AND BIKEWAYS SYSTEM
Despite the many community benefits trails offer, the Redding area trails system is unlikely to come close to achieving its potential unless planners, planning commissioners, elected local government officials, and other interested parties think of trails and bikeways as community enhancements similar to underground utilities and paved roads and develop a policy that create incentives to encourage private property owners to grant public trail easements out of self-interest. This would address one of the most intractable barriers to the development of local trails–reluctance and resistance from individuals and businesses that own property on or adjacent to a potential trail or bikeway that is proposed or may even exist in a de facto fashion but which lacks legal protection. Some property owners who do not want trail users crossing their land can stop the most promising potential trail dead in its tracks, often based on misconceptions of related benefits and risks.
The A.C.I.D. Canal is an example of how easy it can be for a few people to have the power to deprive their community an asset that could help transform it. Instead of it being the setting of a world class bikeway serving thousands of residents and a half dozen school districts, segments of it have become an attractive nuisance traveled by vagrants, addicts, criminals, and other trespassers that locals do not want in their backyard. It is a microcosm of all the fears and worries that often make the development of a local trail system on private property (especially if developed and occupied) difficult to impossible with the current incentives that are currently available to offer to property owners to encourage public use of their property.
As a trail advocacy group, TBC members and cohorts talk with property owners frequently. In our experience and our reading we believe that landowners’ concerns regarding trails or bikeways on or near their property include the fear of:
1. Loss of privacy, because of visual, sound, and physical intrusion by trail users.
2. Crimes and other destructive acts by trail users against people and property.
3. Lawsuits by injured trail users against property owners.
4. Loss of real estate value due to the trail.
5. Potential restrictions on the landowners’ use and development of their property.
WHAT LANDOWNERS GRANTING TRAIL EASEMENTS DESERVE–TBC POSITION
While much landowner apprehension about trails is unfounded, failure to allay it will ensure that some of the best potential future trails in the area will never be built. The right inducements and guarantees to property owners should encourage their support for (or to defuse their opposition to) the development of recreational facilities on or adjacent to their private property. For allowing their land to be used for the public good, property owners should be entitled (without cost to themselves) to:
1. Privacy: Property owners have the right to privacy on their land. Their living space should be protected from trespass and nuisance from the trail. This could include privacy barriers including fences, vegetation, walls, etc. that prevent or mitigate sound, visual and physical intrusion by trail users. Improvements needed to ensure privacy can often be obtained from grants and community donations.
2. Safety: The trail should not be a source of danger or crime to adjoining property or its occupants—e.g. fire or crime. A neighborhood generally becomes more rather than less safe because a public trail crosses it. Past experience in other cities has shown that trails have had no net effect on crime. Now trail users with cell phones can function as a traveling neighborhood watch by their ability to call 911 in response to a crime or emergency. A GPS-enabled phone can instantly give the location of the emergency.
3. Legal protection: The landowner should be, and are, protected from financial harm from lawsuits by trail users injured on their property.
California civil code section 846 (click on the blue section to go directly to the code) was enacted for the purpose of encouraging public use of private land. Because of this law, land owners have no responsibility to keep their premises safe for entry or use by the public and therefore have no legal responsibility to individuals injured while recreating on their property.
Because of this statute, property owners are generally immune from
personal injury suits from trail users unless the plaintiff could prove
malice, or other exceptions (e.g. personal invitation or commercial use of
property). Because this statute heavily favors the
landowners, only personal injury suits with exceptional circumstances, such
as those involving malicious conduct or gross owner negligence, might be
possible, so the cost of liability insurance for suits from trail users can
be very reasonable, and can often be obtained by trail advocacy groups for
the benefit of affected owners together with an agreement to indemnify and
defend affected property owners in the event of a trail user injury claim.
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4. Financial gain: Generally landowners realize appreciated land values and other benefits when they grant trail easements across their property with proper privacy and insurance protections in place. Other significant benefits can include property tax reductions, direct payment for purchase of the land used by the trail, charitable write-offs for donation of land for trail use, and paid-for property improvements (e.g. privacy barriers, a long driveway).
The experience of other communities that have built trails in developed neighborhoods has been that property values tend to be higher in the vicinity of the trail. Therefore we believe that most property owners will benefit financially if a trail is nearby.
5. Revocable Trail Easements: If promises made to the landowner cannot be met—e.g. Privacy not assured, no financial reward, criminal activity by trail users against person or property, etc., the property owner has the right to revoke the easement which could be restored after the problem was fixed. This can be made clear in any easement agreement that also addresses insurance and other issues of concern to the affected land owner.
This one may be tricky as an unscrupulous property owner could hold government and organization hostage, but I believe that it would encourage participation by allaying the fear that a property owners could grant trail easements and then discovering that things did not work out as promised and they then had no recourse. This could apply to ranchers in particular. A property tax reduction would work well here as the taxes could go back up if the easement were revoked.
THE POTENTIAL OF OPENING PRIVATE PROPERTY TO TRAILS
If property owners had incentives that made them want to grant trail easements, think of the places that could become available to nonmotorized public travel and recreation:
1. Numerous area ranches that could be opened to hiking and mountain biking. In countries like Great Britain and New Zealand much of the countryside that is used for pasture is open to the public encouraging tourism and benefitting the local communities.
2. Segments of local water ditches and canals, both operational and historic—e.g. the Coleman Canal, the Clear Creek Canal, segments of the ACID Canal that local residents might want opened for recreation and commuting, and many others not even on our radar yet.
3. Numerous ridge tops, canyons, and stream courses that are currently hidden treasures that the public could enjoy.
4. Crucial parcels that can add priceless connectivity and recreational possibilities.
As private land owners increasingly begin to realize both the economic and public benefits of public trail easements on their property, if done in a way that ensures desired privacy and addresses other common concerns as above addressed, the Redding area truly has the potential to become a hiking and mountain bike Mecca like Lake Tahoe, Moab, Utah, and Durango, Colorado, benefiting the economy, vibrancy, and culture of the entire area.
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Introduction
The purpose of Civil Code 846 was to encourage the public use of private property for public recreation by dramatically reducing the likelihood of landowners being successfully sued by individuals injured on private property. In summary the law states that the property owner has no obligation to make his property safe to individuals who enter it, with the exception of guests and paying customers. The property owner can be successfully sued if he deliberately makes the property dangerous—e.g. traps, attack dogs, shooting or otherwise harming individuals not committing a crime against person or property. Civil Code 847 gives the property owners the right to defend their property and those on it from people committing a crime on their property.
Civil Code 846
846. An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of structures, or activities on such premises to persons entering for such purpose, except as provided in this section.
A "recreational purpose," as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.
An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby:
extend any assurance that the premises are safe for such purpose
constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed
assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.
This section does not limit the liability which otherwise exists:
for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity
for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose
to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
Nothing in this section creates a duty of care or ground of liability for injury to person or property.
846.1. (a) Except as provided in subdivision (c), an owner of any estate or interest in real property, whether possessory or nonpossessory, who gives permission to the public for entry on or use of the real property pursuant to an agreement with a public or nonprofit agency for purposes of recreational trail use, and is a defendant in a civil action brought by, or on behalf of, a person who is allegedly injured or allegedly suffers damages on the real property, may present a claim to the State Board of Control for reasonable attorney's fees incurred in this civil action if any of the following occurs:
The court has dismissed the civil action upon a demurrer or motion for summary judgment made by the owner or upon its own motion for lack of prosecution.
The action was dismissed by the plaintiff without any payment from the owner.
The owner prevails in the civil action.
(b) Except as provided in subdivision (c), a public entity, as defined in Section 831.5 of the Government Code, that gives permission to the public for entry on or use of real property for a recreational purpose, as defined in Section 846, and is a defendant in a civil action brought by, or on behalf of, a person who is allegedly injured or allegedly suffers damages on the real property, may present a claim to the State Board of Control for reasonable attorney's fees incurred in this civil action if any of the following occurs:
The court has dismissed the civil action upon a demurrer or motion for summary judgment made by this public entity or upon its own motion for lack of prosecution.
The action was dismissed by the plaintiff without any payment from the public entity.
The public entity prevails in the civil action.
(c) An owner of any estate or interest in real property, whether possessory or nonpossessory, or a public entity, as defined in Section 831.5 of the Government Code, that gives permission to the public for entry on, or use of, the real property for a recreational purpose, as defined in Section 846, pursuant to an agreement with a public or nonprofit agency, and is a defendant in a civil action brought by, or on behalf of, a person who seeks to restrict, prevent, or delay public use of that property, may present a claim to the State Board of Control for reasonable attorney's fees incurred in the civil action if any of the following occurs:
The court has dismissed the civil action upon a demurrer or motion for summary judgment made by the owner or public entity or upon its own motion for lack of prosecution.
The action was dismissed by the plaintiff without any payment from the owner or public entity.
The owner or public entity prevails in the civil action.
(d) The State Board of Control shall allow the claim if the requirements of this section are met. The claim shall be paid from an appropriation to be made for that purpose. Reasonable attorneys' fees, for purposes of this section, may not exceed an hourly rate
greater than the rate charged by the Attorney General at the time the award is made, and may not exceed an aggregate amount of twenty-five thousand dollars ($25,000). This subdivision shall not apply if a public entity has provided for the defense of this civil action
pursuant to Section 995 of the Government Code. This subdivision shall also not apply if an owner or public entity has been provided a legal defense by the state pursuant to any contract or other legal obligation.
(e) The total of claims allowed by the board pursuant to this section shall not exceed two hundred thousand dollars ($200,000) per fiscal year.
846.2. No cause of action shall arise against the owner, tenant, or lessee of land or premises for injuries to any person who has been expressly invited on that land or premises to glean agricultural or farm products for charitable purposes, unless that person's injuries were caused by the gross negligence or willful and wanton misconduct
of the owner, tenant, or lessee. The immunity provided by this section does not apply if the owner, tenant, or lessee received any consideration for permitting the gleaning activity.
846.5. (a) The right of entry upon or to real property to investigate and utilize boundary evidence, and to perform surveys, is a right of persons legally authorized to practice land surveying and it shall be the responsibility of the owner or tenant who owns or controls property to provide reasonable access without undue delay. The right of entry is not contingent upon the provision of prior notice to the owner or tenant. However, the owner or tenant shall be notified of the proposed time of entry where practicable.
(b) The requirements of subdivision (a) do not apply to monuments within access-controlled portions of freeways.
(c) When required for a property survey, monuments within a freeway right-of-way shall be referenced to usable points outside the access control line by the agency having jurisdiction over the freeway when requested in writing by the registered civil engineer or
licensed land surveyor who is to perform the property survey. The work shall be done within a reasonable time period by the agency in direct cooperation with the engineer or surveyor and at no charge to him.
Civil Code 847
847. (a) An owner, including, but not limited to, a public entity, as defined in Section 811.2 of the Government Code, of any estate or any other interest in real property, whether possessory or nonpossessory, shall not be liable to any person for any injury or
death that occurs upon that property during the course of or after the commission of any of the felonies set forth in subdivision (b) by the injured or deceased person.
(b) The felonies to which the provisions of this section apply are the following: (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, or threat of great bodily harm; (5) oral copulation by force, violence, duress,
menace, or threat of great bodily harm; (6) lewd acts on a child under the age of 14 years; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any other felony in which the defendant inflicts great bodily injury on any person, other
than an accomplice, or any felony in which the defendant uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing great bodily injury; (17) exploding a destructive device or any explosive with intent to murder; (18) burglary; (19) robbery; (20) kidnapping; (21) taking of a hostage by an inmate of a state prison; (22) any felony in which the defendant personally used a dangerous or deadly weapon; (23) selling, furnishing, administering, or providing heroin, cocaine, or phencyclidine (PCP) to a minor; (24) grand theft as defined in Sections 487 and 487a of the Penal Code; and (25) any attempt to commit a crime listed in this subdivision other than an assault.
(c) The limitation on liability conferred by this section arises at the moment the injured or deceased person commences the felony or attempted felony and extends to the moment the injured or deceased person is no longer upon the property.
(d) The limitation on liability conferred by this section applies only when the injured or deceased person's conduct in furtherance of the commission of a felony specified in subdivision (b) proximately or legally causes the injury or death.
(e) The limitation on liability conferred by this section arises only upon the charge of a felony listed in subdivision (b) and the subsequent conviction of that felony or a lesser included felony or misdemeanor arising from a charge of a felony listed in subdivision
(b). During the pendency of any such criminal action, a civil action alleging this liability shall be abated and the statute of limitations on the civil cause of action shall be tolled.
(f) This section does not limit the liability of an owner or an owner's agent which otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(g) The limitation on liability provided by this section shall be in addition to any other available defense.
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