What is considered trespassing in South Carolina?

Full Question:

My housing development is fairly new, about 300 homes built 3 years ago. It backs up to a local school. There is a large section of woods between our homes and the school. There is a wooded path (looks like a short dirt road) that leads to the school from the housing area. I recently verified through the town hall that the property is zoned out to the school. For the past 3 years Parents and children have used this path to walk to and from school or throughout the day if we had to pick a child up early. There are no posted 'No Trespassing signs'. The school is also well aware of the paths use. At about an hour prior to school letting out I was recently approached by a school custodian who said I had no business being there and asked me to leave, which I did. (About once a week I will walk the path and pick up trash that the kids sometimes leave behind, then walk over to meet my child at the front of the school). I then approached the principle about this and he said that he had planned on putting up NO TRESPASSING signs, he also said 'You will be hearing from us' and no longer wanted to talk to me. ( I should mention that prior to this, I recently contacted the local code enforcement office about illegal trash dumping that had been taking place in the woods, near the path and the school had to remove the trash. (The trash appeared to be coming from the school.... damaged chair, hoses, florescent light bulbs and more ). The principle is well aware that it was me who made the complaint. (I have e-mail traffic between Code enforcement and myself to show this) I also contacted the local police department after the incident and took an officer back to the path. He verified that there were no posted signs, and said I had nothing to worry about. My question is: Was I Trespassing? Could I be charged even though I left the property when asked? If I am charged in the future I believe I would be singled out since I have not heard of anyone else ever being asked to leave. I also think it would just be seen as an act of reprisal on the schools part. Finally, Would I have a case if I wanted to clear my good name?
04/03/2009   |   Category: Real Property ยป Trespassing   |   State: South Carolina   |   #15865

Answer:

Trespass is entering another person's property without permission of the owner or legal authority. In order to recover damages for trespass, some damage, no matter how slight, must be caused. If the trespass is with an illegal intent, it is a crime. Trespass may also be a civil wrong (tort), such as interfering with an owner or tenant's use of the property by dumping waste or removing trees on the property. Traditionally, for either type of trespass, some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another's land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a "no trespassing" sign in posted. A trespasser would probably not be prosecuted if the land was open, the trespasser's conduct did not substantially interfere with the owner's use of the property, and the trespasser left immediately on request. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible, regardless of whether a crime has been committed. In addition to damages, a court may grant an injunction prohibiting any further continuing, repeated or permanent trespass.

Landowner consent may be express as when the landowner indicates, verbally or in writing, permission to enter onto the land. The existence of consent may be implied from the landowner's conduct, from custom, or from the circumstances. Consent may be implied if these factors exist: the landowner was unavailable to give consent and immediate action is necessary to save a life or prevent a serious injury. Additionally, some states may extend this protection to animals.

Sometimes a trespasser continues trespassing for such a long time, the law permits the trespasser to have the right to stay on the land. This right ranges from the right to live on the land to the right to pass across it to get somewhere else. If the piece of property in dispute has been used by someone other than the owner for a number of years, the doctrine of adverse possession may apply. State laws vary with respect to time requirements; however, typically, the possession by the non-owner needs to be open, notorious, and under a claim of right. In some states, the non-owner must also pay the property taxes on the occupied land. A permissive use of property eliminates the ability to claim adverse possession. One common form of trespassing is when a neighbor's driveway or fence encroaches onto someone else's land. Sometimes the owner will not want to make an issue of the encroachment—either because it seems to be a minor problem or because the neighbor is a friend. To avoid problems later, however, the owner should give the "trespasser" written permission to keep the encroachment for as long as the owner continues to authorize it. If properly handled, this document will prevent the trespasser from acquiring a right to continue the encroachment and from passing along this right to future owners.

An easement is a property interest, which entitles the owner of the easement to the privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land. A nonexclusive easement does not specify any specific parties. An exclusive easement specifies parties who have benefit of that easement. Easements may be obtained for access to another property, called "access and egress", use of spring water, entry to make repairs on a fence or slide area, drive cattle across and other uses. The easement is a real property interest, but separate from the legal title of the owner of the underlying land. In the case of a driveway easement, it allows the person who is the beneficiary of the easement to cross the "servient" property. The land which receives the benefit of the easement is called the "dominant" property or estate. An easement may be claimed by prescription for the use of the driveway. This requires proof that your neighbor willingly abandoned his use of the driveway during the adverse period when you and your predecessor in title enjoyed the exclusive use of the driveway. Easements should describe the extent of the use, as well as the easement location and boundaries. Easements can be created by a deed to be recorded just like any real property interest, by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, typically five ("prescriptive easement"), or to do equity (fairness), including giving access to a "land-locked" piece of property (sometimes called an "easement of necessity"). Because landlocked parcels have virtually no value, an easement by necessity can usually be created over an adjoining parcel if, at sometime in the past, it had common ownership with the landlocked parcel. Easements may be specifically described by boundaries or by its purpose. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property. The location, maintenance, and uses of the easement are defined by the agreement, use, or instrument creating the easement

A permissive easement is simply an allowance to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Such signs, often found on private roadways, typically state: "This is a private roadway. Use of this road is permissive and may be revoked at any time by the owner."

An easement by prescription is one that is gained under principles of adverse possession. If a person uses another's land for more than the statute of limitations period prescribed by state law, that person may be able to derive an easement by prescription. The use of the land must be open, notorious, hostile, and continuous for a specified number of years as required by law in each state. The time period for obtaining an easement by adverse possession does not begin to run until the one seeking adverse possession actually trespasses on the land. The use of the easement must truly be adverse to the rights of the landowner of the property through which the easement is sought and must be without the landowner's permission. If the use is with permission, it is not adverse. There must be a demonstration of continuous and uninterrupted use throughout the statute of limitations period prescribed by state law. If the use is too infrequent for a reasonable landowner to bother protesting, the continuity requirement will probably not be satisfied. Subsequent parties in the same position to the land using the right of way adversely can add up the time to meet the required statute of limitations. This situation is known as tacking. Thus, a prescriptive easement need not be exclusive; it can be shared among several users.

Unlike other types of interests in land, easements may be terminated by abandonment under certain circumstances. Simply stating a desire to abandon the easement is not be enough. Words alone are legally insufficient to constitute abandonment. However, if the easement holder intends to abandon an easement and also takes actions which manifest that intent, that is sufficient to show abandonment of the easement, and it can be terminated. One action that qualifies as manifesting intent is non-use of the easement for an extended period of time, despite the holder of the easement's having had an extended period of access to the easement.

The following are South Carolina statutes:

§ 15-67-210. Presumption of possession; when occupation deemed under
legal title.

In every action for the recovery of real property or the possession
thereof the person establishing a legal title to the premises shall be
presumed to have been possessed thereof within the time required by law.
The occupation of such premises by any other person shall be deemed to
have been under and in subordination to the legal title unless it appear
that such premises have been held and possessed adversely to such legal
title for ten years before the commencement of such action.

§ 15-67-220. Effect of occupation under written instrument or court
decree or judgment.

Whenever it shall appear
(a) that the occupant or those under whom he
claims entered into the possession of premises under claim of title,
exclusive of any other right, founding such claim upon a written
instrument as being a conveyance of the premises in question or upon the
decree or judgment of a competent court and
(b) that there has been a
continued occupation and possession of the premises, or of some part of
such premises, included in such instrument, decree or judgment under such
claim for ten years, the premises so included shall be deemed to have
been held adversely, except that when the premises so included consist of
a tract divided into lots, the possession of one lot shall not be deemed
a possession of any other lot of the same tract.

§ 15-67-230. What constitutes adverse possession under written instrument
or court decree or judgment.

For the purpose of constituting an adverse possession by any person
claiming a title founded upon a written instrument or a judgment or
decree, land shall be deemed to have been possessed and occupied in the
following cases:

(1) When it has been usually cultivated or improved;


(2) When it has been protected by a substantial enclosure;


(3) When, although not enclosed, it has been used for the supply of
fuel or of fencing timber, for the purposes of husbandry or for the
ordinary use of the occupant; and


(4) When a known farm or a single lot has been partly improved the
portion of such farm or lot that may have been left not cleared or not
enclosed, according to the usual course and custom of the adjoining
country, shall be deemed to have been occupied for the same length of
time as the part improved and cultivated.

§ 15-67-240. Premises held adversely but not under written instrument or
court judgment or decree.

When it shall appear that there has been an actual continued occupation
of premises under a claim of title, exclusive of any other right but not
founded upon a written instrument or a judgment or decree, the premises
so actually occupied, and no other, shall be deemed to have been held
adversely.

§ 15-67-250. What constitutes adverse possession under claim of title not
under written instrument or court judgment or decree.

For the purpose of constituting an adverse possession by a person
claiming title not founded upon a written instrument or a judgment or
decree, land shall be deemed to have been possessed in the following
cases only:

(1) When it has been protected by a substantial enclosure; and


(2) When it has been usually cultivated or improved.


§ 15-67-260. Relation of landlord and tenant as affecting adverse
possession.

Whenever the relation of landlord and tenant shall have existed between
any persons the possession of the tenant shall be deemed the possession
of the landlord until the expiration of ten years from the termination of
the tenancy or, when there has been no written lease, until the
expiration of ten years from the time of refusal to pay rent,
notwithstanding that such tenant may have acquired another title or may
have claimed to hold adversely to his landlord. But such presumptions
shall not be made after the periods herein limited.

§ 16-11-600. Entry on another's pasture or other lands after notice;
posting notice.

Every entry upon the lands of another where any horse, mule, cow, hog
or any other livestock is pastured, or any other lands of another, after
notice from the owner or tenant prohibiting such entry, shall be a
misdemeanor and be punished by a fine not to exceed one hundred dollars,
or by imprisonment with hard labor on the public works of the county for
not exceeding thirty days. When any owner or tenant of any lands shall
post a notice in four conspicuous places on the borders of such land
prohibiting entry thereon, a proof of the posting shall be deemed and
taken as notice conclusive against the person making entry, as
aforesaid, for the purpose of trespassing.

§ 16-11-610. Entry on another's lands for various purposes without
permission.

Any person entering upon the lands of another for the purpose of
hunting, fishing, trapping, netting; for gathering fruit, wild flowers,
cultivated flowers, shrubbery, straw, turf, vegetables or herbs; or for
cutting timber on such land, without the consent of the owner or
manager, shall be deemed guilty of a misdemeanor and upon conviction
shall, for a first offense, be fined not more than two hundred dollars or
imprisoned for not more than thirty days, for a second offense, be fined
not less than one hundred dollars nor more than two hundred dollars or
imprisoned for not more than thirty days and, for a third or subsequent
offense, be fined not less than five hundred dollars nor more than one
thousand dollars or imprisoned for not more than six months or both. A
first or second offense prosecution resulting in a conviction shall be
reported by the magistrate or city recorder hearing the case to the
communications and records division of the South Carolina Law Enforcement
Division which shall keep a record of such conviction so that any law
enforcement agency may inquire into whether or not a defendant has a
prior record. Only those offenses which occurred within a period of ten
years, including and immediately preceding the date of the last offense,
shall constitute prior offenses within the meaning of this section.

§ 16-11-620. Entering premises after warning or refusing to leave on
request; jurisdiction and enforcement.

Any person who, without legal cause or good excuse, enters into the
dwelling house, place of business, or on the premises of another person
after having been warned not to do so or any person who, having entered
into the dwelling house, place of business, or on the premises of another
person without having been warned fails and refuses, without good cause or
good excuse, to leave immediately upon being ordered or requested to do
so by the person in possession or his agent or representative shall, on
conviction, be fined not more than two hundred dollars or be imprisoned
for not more than thirty days.

All municipal courts of this State as well as those of magistrates may
try and determine criminal cases involving violations of this section
occurring within the respective limits of such municipalities and
magisterial districts. All peace officers of the State and its
subdivisions shall enforce the provisions hereof within their respective
jurisdictions.

The provisions of this section shall be construed as being in addition
to, and not as superseding, any other statutes of the State relating to
trespass or entry on lands of another.

§ 16-11-630. Refusing to leave certain public premises during hours when
they are regularly closed.

Any person who, during those hours of the day or night when the
premises owned or occupied by a state, county or municipal agency are
regularly closed to the public, shall refuse or fail, without justifiable
cause, to leave those premises upon being requested to do so by a
law-enforcement officer or guard, watchman or custodian responsible for
the security or care of the premises, shall be deemed guilty of a
misdemeanor and upon conviction, be fined not more than one hundred
dollars or be imprisoned for not more than thirty days.

§ 16-11-640. Unlawful entry into enclosed places.

It shall be unlawful for any person not an occupant, owner or invitee
to enter any private property enclosed by walls or fences with closed
gates between the hours of six P.M. and six A.M. The provisions of this
section shall not apply to any justifiable emergency entry or to premises
which are not posted with clearly visible signs prohibiting trespass upon
the enclosed premises. The provisions of this section are supplemental to
existing law relating to trespass and punishment therefor. Any person who
violates the provisions of this section shall be deemed guilty of a
misdemeanor and upon conviction shall be fined not less than twenty-five
dollars nor more than two hundred dollars or imprisoned for not more than
thirty days.

§ 16-11-660. Traveling outside of road on cultivated lands.

It shall be a misdemeanor for any person wilfully to walk, drive or
ride or to allow his team to travel outside of the road on the cultivated
lands of another, punishable as provided in § 16-11-650; provided, that
in case any person charged with this misdemeanor be brought before or
reported to a magistrate he may discharge himself from any further
proceedings therein by paying such fine within the above limits as the
magistrate may impose.

§ 16-11-700. Dumping litter on private or public property prohibited;
exceptions; responsibility for removal; penalties.

(A) A person, from a vehicle or otherwise, may not dump, throw, drop,
deposit, discard, or otherwise dispose of litter or other solid waste, as
defined by Section 44-96-40 (46), upon public or private property or
waters in the State including, but not limited to, a highway, park,
beach, campground, forest land, recreational area, trailer park, road,
street, or alley except:

(1) on property designated by the State for the disposal of litter and
other solid waste and the person is authorized to use the property for
that purpose; or

(2) into a litter receptacle in a manner that the litter is prevented
from being carried away or deposited by the elements upon a part of the
private or public property or waters.

(B) Responsibility for the removal of litter from property or
receptacles is upon the person convicted pursuant to this section of
littering the property or receptacles. If there is no conviction for
littering, the responsibility is upon the owner of the property.

(C)
(1) A person who violates the provisions of this section in an
amount less than fifteen pounds in weight or twenty-seven cubic feet in
volume is guilty of a misdemeanor and, upon conviction, must be fined two
hundred dollars or imprisoned for not more than thirty days for a first
or second conviction, or fined five hundred dollars or imprisoned for not
more than thirty days for a third or subsequent conviction. In addition
to the fine or term of imprisonment, the court also must impose eight
hours of litter-gathering labor for a first conviction, sixteen hours of
litter-gathering labor for a second conviction, and twenty-four hours of
litter-gathering labor for a third or subsequent conviction, or other
form of public service, under the supervision of the court, as the court
may order because of physical or other incapacities.

(2) The fine for a deposit of a collection of litter or garbage in an
area or facility not intended for public deposit of litter or garbage is
one thousand dollars. The provisions of this item apply to a deposit of
litter or garbage, as defined in Section 44-67-30 (4), in an area or
facility not intended for public deposit of litter or garbage. This item
does not prohibit a private property owner from depositing litter or
garbage as a property enhancement if the depositing does not violate
applicable local or state health and safety regulations. In addition to a
fine and for each offense pursuant to the provisions of this item, the
court also shall impose a minimum of five hours of litter-gathering labor
or other form of public service, under the supervision of the court, as
the court may order because of physical or other incapacities.

(3) The court, instead of payment of the monetary fine imposed for a
violation of this section, may direct the substitution of additional
litter-gathering labor or other form of public service, under the
supervision of the court, as it may order because of physical or other
incapacities not to exceed one hour for each five dollars of fine
imposed.

(4) In addition to other punishment authorized by this section, in the
discretion of the court in which conviction is obtained, the person may
be directed by the judge to pick up and remove from any public place or
any private property, with prior permission of the legal owner of the
property upon which it is established by competent evidence that the
person has deposited litter, all litter deposited on the place or property
by any person before the date of execution of sentence.

(D) A person who violates the provisions of this section in an amount
exceeding fifteen pounds in weight or twenty-seven cubic feet in volume,
but not exceeding five hundred pounds or one hundred cubic feet, is
guilty of a misdemeanor and, upon conviction, must be fined not less than
two hundred dollars nor more than five hundred dollars or imprisoned for
not more than ninety days. In addition, the court shall require the
violator to pick up litter or perform other community service
commensurate with the offense committed, up to one hundred hours.

(E)
(1) A person who violates the provisions of this section in an
amount exceeding five hundred pounds in weight or one hundred cubic feet
in volume is guilty of a misdemeanor and, upon conviction, must be fined
not less than five hundred dollars nor more than one thousand dollars, or
imprisoned not more than one year, or both. In addition, the court may
order the violator to:

(a) remove or render harmless the litter that he dumped in violation of
this subsection;


(b) repair or restore property damaged by, or pay damages for damage
arising out of, his dumping of litter in violation of this subsection; or


(c) perform community public service relating to the removal of litter
dumped in violation of this subsection or relating to the restoration of
an area polluted by litter dumped in violation of this subsection.


(2) A court may enjoin a violation of this subsection.

(3) A motor vehicle, vessel, aircraft, container, crane, winch, or
machine involved in the disposal of more than five hundred pounds in
weight or more than one hundred cubic feet in volume of litter in
violation of this subsection is declared contraband and is subject to
seizure and summary forfeiture to the State.

(4) If a person sustains damages in connection with a violation of this
subsection that gives rise to a felony against the person or his
property, a court, in a civil action for those damages, shall order the
wrongdoer to pay the injured party threefold the actual damages or two
hundred dollars, whichever amount is greater. In addition, the court
shall order the wrongdoer to pay the injured party's court costs and
attorney's fees.

(5) A fine imposed pursuant to this subsection must not be suspended,
in whole or in part.

(F)
(1) When the penalty for a violation of this section includes
litter-gathering labor in addition to a fine or imprisonment, the
litter-gathering portion of the penalty is mandatory and must not be
suspended; however, the court, upon the request of a person convicted of
violating this section, may direct that the person pay an additional
monetary penalty instead of the litter-gathering portion of the penalty
that must be equal to the amount of five dollars an hour of
litter-gathering labor. Probation must not be granted instead of the
litter-gathering requirement, except for a person's physical or other
incapacities.

(2) Funds collected pursuant to this subsection instead of the
mandatory litter-gathering labor must be remitted to the county or
municipality where the littering violation took place. The money
collected may be used for the litter-gathering supervision.

(G) For purposes of the offenses established by this section, litter
includes cigarettes and cigarette filters.

(H) A prior violation within the meaning of this section means only a
violation of this section which occurred within a period of five years
including and immediately preceding the date of the last violation.

(I) Magistrates and municipal courts have jurisdiction to try
violations of subsections (A), (B), (C), and (D) of this section.

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