Simon Outlet Mall 61st & Hwy 75

[sgrizzle]

Grizzle, people could make a reasonable inference from this official Riverparks map that the subject property and other privately-held properties were public domain:



In other words, prior to now, very few people would have realized this was privately-held property. 

Riverparks and INCOG have since gone back and replaced this map in their links with a map sectioning out the privately-held lands and identifies the proposed outlet mall.  Prior to a few months ago, this is what people viewed when they pulled up the Turkey Mountain Urban Wilderness map on the RPA and INCOG web sites.

That isn't an official map, it was made by someone who enjoys the trails, other orgs just made use of it for a time.

[Red Arrow]

That isn't an official map, it was made by someone who enjoys the trails, other orgs just made use of it for a time.

Giving it the appearance of an official map.

[ZYX]

That map was (is?) on display at Turkey Mountain.

[rebound]

That isn't an official map, it was made by someone who enjoys the trails, other orgs just made use of it for a time.

Curious what Isn't/wasn't official about it.  It was posted on INCOG, and has the River Parks and Turkey Mountain logos on it.   Looks pretty darned official to me.  It might  have been wrong, but it was posted as an official map.

[Conan71]

Curious what Isn't/wasn't official about it.  It was posted on INCOG, and has the River Parks and Turkey Mountain logos on it.   Looks pretty darned official to me.  It might  have been wrong, but it was posted as an official map.

If it's who I think created the map I believe he was an RPA employee at the time.  He's no longer at RPA.  I agree INCOG and RPA posting it on their sites makes it appear as if it were an "official" map.

It never occurred to me since there were no section line fences out on this part of the area to geocache it, research land ownership, then write a letter to the owner to see if it was okay if I rode my bike or hiked their property.  I'll remember to do that in the future.

[heironymouspasparagus]

If it's who I think created the map I believe he was an RPA employee at the time.  He's no longer at RPA.  I agree INCOG and RPA posting it on their sites makes it appear as if it were an "official" map.

It never occurred to me since there were no section line fences out on this part of the area to geocache it, research land ownership, then write a letter to the owner to see if it was okay if I rode my bike or hiked their property.  I'll remember to do that in the future.

Yeah...fencing or not, if it isn't your property, then you are always trespassing if haven't contacted the owner for permission.  No posting is required - it is assumed/defined under state law.  (Since at least 2007.)

Most don't bother to check.

[sgrizzle]

There are no real boundaries on this map at all. It's hard to say that it is inferring "official" boundaries when it also includes the YMCA and area on the other side of highway 75 in green.

[cannon_fodder]

People seem to be confused about the term "trespass," so lets clear that up:

1) The State of Oklahoma has a stated policy intended to encourage vacant land to be open for recreational purposes. The help facilitate this they have granted immunity to owners of such land from recreational use of such land (basically, if someone gets hurt and you didn't directly cause it - you should be good to go).  See 2 OS 16-71.1 et seq.   and also 76 OS 10.1

The purpose of this section is to encourage landowners to make land available to the public for outdoor recreational purposes by limiting their liability to persons entering upon and using such land and to third persons who may be damaged by the acts or omissions of persons going upon these lands.

76 OS 10.1(A)(1)

2) Oklahoma encourages/requires land owners to "post" no trespassing if you want to exclude people from your land (specifically applies to "fields," which we are talking about).  This goes way back to communal grazing days and cattle drives, but essentially has still stuck around:

For purposes of this section, "posted" means exhibiting signs to read as follows: "PROPERTY RESTRICTED"; "POSTED - KEEP OUT"; "KEEP OUT"; "NO TRESPASSING"; or similar signs which are displayed. Property that is fenced or not fenced must have such signs placed conspicuously and at all places where entry to the property is normally expected.

21 OS 1835

For fun, the law specifically states that the governors mansion doesn't have to post signs, but has no other exceptions. Subsequent amendments have muddied the "requirement" of posting, but the law still lists it as a requirement and then lists implied consent as an affirmative defense, but not being posted doesn't equal implied consent--- BUT, as it pertains to a field, if it isn't posted it appears one would be working on an affirmative defense for something that isn't a crime anyway?  Basically... it should be posted.

3) To be a trespasser you have to "willfully or maliciously enter" the field, posted with signs, without permission.  If you believe the field is a public park, you are by definition not trespassing.

4) Implied consent is a defense. Even if you knew it was not River Park land (as we now do) and even if we thought we were to be excluded (by the posting we previously discussed) - implied consent can exist by past action or custom. Obviously NEW signs can change old customs, but as it stands there is no posting and the ~40 year custom has been to allow access to this land.  Again, not trespassing.

5) BUT... if the premises is primarily devoted to farming, ranching or forestry, then you apparently don't need to have it posted (because of obvious hazards and waste issues that are possible). BUT, the provision still has defenses for implied consent etc.  12 OS 1835.2

SOOOOOO... it appears the YMCA, mountain bikers, hikers, and anyone else on the property we are discussing is not trespassing. If anything the law has worked exactly as intended by encouraging the owners to allow recreational use on the land.  However, if they now chose to exclude people they could do so (probably by fencing and definitely by posting signs). Nothing in past use creates a current right (and I don't think anyone has been arguing this).

[guido911]

People seem to be confused about the term "trespass," so lets clear that up:

1) The State of Oklahoma has a stated policy intended to encourage vacant land to be open for recreational purposes. The help facilitate this they have granted immunity to owners of such land from recreational use of such land (basically, if someone gets hurt and you didn't directly cause it - you should be good to go).  See 2 OS 16-71.1 et seq.   and also 76 OS 10.1
76 OS 10.1(A)(1)

Title 2 is Oklahoma's agriculture statute. Here is the link to your first citation.

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=440639

B. 1. The purpose of the Oklahoma Limitation of Liability for Farming and Ranching Land Act is to encourage owners of farming and ranching lands to make such land available for recreational purposes by limiting their liability to persons entering or using the farm and ranch land and to third persons who may be damaged by the acts or omissions of persons entering upon or using these lands.

Your second citation 78 O.S 10.1 is entitled "Limitation on Liability of Persons Making Land Available to Public for Recreational Purposes Without Charge". Is this what the persons that own the land that might become the outlet mall were doing with their property? They were "provid[ing] the public with land for outdoor recreational purposes" as Sec. 10.1(B) prescribes.

See, http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=440637


Your third citation 21 O.S. Sec. 1835 is entitled "Trespass After Being Forbidden - Penalty - Entry Into Pecan Grove Without Prior Consent". I encourage everyone to read this statute., especially since it begins with the following: "Whoever shall willfully or maliciously enter the garden, yard, pasture or field of another after being expressly forbidden to do so or without permission by the owner or lawful occupant thereof when such property is posted shall be deemed guilty of trespass..."

See, http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=70144

[cannon_fodder]

Guido:

Yes, that is Oklahoma's ag statute covering fields and encouraging people to make their land available for recreational purposes.

Yes, the second statute also offers liability protection for persons making land available for recreational purposes without charge.

Yes, the owners of the land in question did make the land available for recreational purposes without charge... for ~40 years at least. They would likely be covered by protections in both title 2 and 76.

Yes, the third citation is the criminal trespass statute.

Yes, it does say that if it is posted and you are expressly forbidden you cannot enter the land.

Other than repeating everything that I said, was there a point that I missed? I feel like your post was meant to be confrontational and you oddly bold a section that I think is supposed to highlight the confrontation... but I can't really figure out what you're trying to get at. If you disagree with my basic analysis, below, let me know:

1) Oklahoma has a public policy encouraging recreational use of empty fields.
2) The field in question was utilized as a recreational area.
3) In order to be a trespass, the owner must exclude people from the land.
4) Nobody has been excluded from the space (no signs, fencing, or other steps were taken to advise people against continued use of the area as a recreational space in the last ~40 years).

Ergo, no trespass and rather an encouraged permissive recreational use.

[cynical]

I'm going to explain my nit-picky paragraph in my previous posting.

Cannon, I think you're missing the middle ground between "it's not trespass" and "it's criminal trespass." The missing middle ground is "it is trespass, but not criminal trespass."

The civil status as a trespasser has important consequences not dependent on criminal liability. The simple definition I gave above earlier in this discussion quoted the OUJI-CIV 17.1, which does not additionally require posting to make entry onto someone's property a "trespass." An important consequence of being a trespasser is that under 76 OS Sec. 80, the landowner owes no duty of care toward them except to refrain from injuring them through a willful, wanton, or intentional act. OUJI-CIV 11.4. (Ignoring attractive nuisances). No where does Oklahoma law require the landowner to post and give actual notice in order to find that someone is a trespasser on that land. That trespassers cannot be prosecuted under the criminal laws unless the additional element of posting is proved only shows an intention to not criminalize trespass in the absence of the additional element of posting. For example, a person who enters someone's land without he owners' permission could be liable for money damages. I've used that successfully a couple of times in condemnation actions in which the condemnor took possession after the owner had challenged the public necessity for the taking. The statute permitting a condemnor to immediately take possession after depositing the commissioners award with the court clerk has been judicially interpreted to apply only when the issue of the condemnor's right to condemn was not in issue. Both cases were settled before trial, but only after the trial court had ruled that an independent claim for trespass for an unlawful entry could be maintained in addition to the condemnation case. The tort of trespass, incidentally, can support a claim for punitive damages if the trespass was willful and intentional, even if there was a claim of right as long as the trespasser knew that his or her claim of right was being challenged.

The differing duties that landowners owe to trespassers and invitees goes a long way toward explaining the existence of the other statutes you cite. As you point out, where the landowner has affirmatively made the land available for recreational use by the public without charge, the landowner is exempted from duties of care toward recreational users regardless of whether they are invitees, trespassers, or otherwise. But 76 O.S. 10.1(C)(2) states that the non-liability rule applies whether the person entering the land is an invitee, licensee, trespasser, or otherwise. Therefore, contrary to your contention that recreational users of private lands made available for recreational use cannot be "trespassers," the statute states that they can be "trespassers." Of course, the immunity in Sec. 10.1 only restates the general rule as to trespassers and extends it to invitees.

Guido:

Yes, that is Oklahoma's ag statute covering fields and encouraging people to make their land available for recreational purposes.

Yes, the second statute also offers liability protection for persons making land available for recreational purposes without charge.

Yes, the owners of the land in question did make the land available for recreational purposes without charge... for ~40 years at least. They would likely be covered by protections in both title 2 and 76.

Yes, the third citation is the criminal trespass statute.

Yes, it does say that if it is posted and you are expressly forbidden you cannot enter the land.

Other than repeating everything that I said, was there a point that I missed? I feel like your post was meant to be confrontational and you oddly bold a section that I think is supposed to highlight the confrontation... but I can't really figure out what you're trying to get at. If you disagree with my basic analysis, below, let me know:

1) Oklahoma has a public policy encouraging recreational use of empty fields.
2) The field in question was utilized as a recreational area.
3) In order to be a trespass, the owner must exclude people from the land.
4) Nobody has been excluded from the space (no signs, fencing, or other steps were taken to advise people against continued use of the area as a recreational space in the last ~40 years).

Ergo, no trespass and rather an encouraged permissive recreational use.

[cannon_fodder]

Cynical,

Good argument!

I agree that a user of this lot *could* be a trespasser if they commit waste, illegal taking, etc. Similarly, even without posting a person would become a trespasser if they were affirmatively excluded by any means (not just posting, to wit: "get off my property!"). However, in the above discussion everyone discussed was merely a recreational user to whom none of the definitions of trespasser apply.

Yes, the statute cited (76 OS 10.1) is all inclusive and says "trespasser, or otherwise." But where a person doesn't otherwise meet the definition of trespasser the language seems to be a non sequitur. Perhaps there is some instance in which you are a recreational user upon land open to public use and have not been excluded or committed an impermissible taking... yet you are a trespasser?  But I can't think of it.

Additionally, no posting, no criminal trespass; and as you are painfully aware - no damages, no trespass in tort.

So it appears all the users of this property that we have discussed in this thread are not, in fact, trespassers.

(my 5 minute legal research really dragged me in on that one!)

[guido911]

Guido:

Yes, that is Oklahoma's ag statute covering fields and encouraging people to make their land available for recreational purposes.

Yes, the second statute also offers liability protection for persons making land available for recreational purposes without charge.

Yes, the owners of the land in question did make the land available for recreational purposes without charge... for ~40 years at least. They would likely be covered by protections in both title 2 and 76.

Yes, the third citation is the criminal trespass statute.

Yes, it does say that if it is posted and you are expressly forbidden you cannot enter the land.

Other than repeating everything that I said, was there a point that I missed? I feel like your post was meant to be confrontational and you oddly bold a section that I think is supposed to highlight the confrontation... but I can't really figure out what you're trying to get at. If you disagree with my basic analysis, below, let me know:

1) Oklahoma has a public policy encouraging recreational use of empty fields.
2) The field in question was utilized as a recreational area.
3) In order to be a trespass, the owner must exclude people from the land.
4) Nobody has been excluded from the space (no signs, fencing, or other steps were taken to advise people against continued use of the area as a recreational space in the last ~40 years).

Ergo, no trespass and rather an encouraged permissive recreational use.

If I wanted to be confrontational, I would have told the readers in this forum that you cited law that is either not pertinent or flat misleading. Is that better?

[Red Arrow]

If I wanted to be confrontational, I would have told the readers in this forum that you cited law that is either not pertinent or flat misleading. Is that better?

Which just goes to show that whatever the subject, you can find experts on opposites sides.  Ain't America great?

[cannon_fodder]

No Guido, it isn't better. You STILL didn't make a coherent argument nor cite to anything contrary.  Ready... If you believe my family hiking in the area in question this morning was trespassing, then make your case.

Thus far your only argument has been "nah uh."