On Fri, May 29, 2020 at 6:32 AM Colin Smale <colin.sm...@xs4all.nl> wrote: > In the UK (especially Scotland) land ownership is pretty absolute. Every bit > of land is owned by someone, even if that owner is The Crown. The owner has > an absolute right to determine who has right of access, except for certain > cases, like a Public Footpath or designated open access land that falls under > the "right to roam" legislation. A person's house and driveway does not fall > under these exceptions, so there is no right of access, except with the > landowner's permission. So here we have "access=private". That does not mean > you cannot knock on the door, or deliver a parcel however; whether by so > doing you are committing civil trespass is not a priori clear - it depends on > the circumstances; modelling all these circumstances in OSM is an enormous > challenge that I don't think we are looking to solve here. > > Despite private ownership, the exceptions I mentioned (public highway, open > access) are "access=public" AKA "access=yes". It is illegal to prevent access. > > Of course there are rules and limitations in all cases as to the type of > access: public footpaths are deemed to be ±1m wide and access is only granted > to pedestrians, not to motor vehicles for example. > > > > I believe that there is a defence to trespass on the grounds of "custom" > which IMHO would cover deliveries to your door, or someone needing > emergency help, or door-to-door salesmen (all in the absence of explicit > signing to the contrary of course).
_Mens rea_, at least in most of the US, is an element of criminal trespass, and the liability for the civil tort of trespass is limited to actual damages in most cases. Since most of the key definitions in this part of the Common Law were established before our legal systems diverged, I imagine that is so in the UK as well. If you haven't damaged property by your unauthorized presence, and you haven't been told that land is private or invaded the curtilage of a dwelling, the owner has no cause of action. In effect, all they can do is to demand that you leave; the cause of action doesn't arise until you fail to comply. Being told that the land is private can be accomplished with signage, which is why 'POSTED' and 'PRIVATE ROAD' signs are ubiquitous in the US. (And, of course, Louisiana law is different!) We have no 'right to roam' here other than the fact that you haven't been trespassing unless you knew or should have known that your presence was unlawful, and are legally liable only for damage you cause. (My state also negotiates public access easements with many of the timber companies, who are willing to tolerate the presence of hikers in order to get a small tax break.) This gives rise to a number of paths whose legal status is unclear - which means that until asked to leave, you're potentially liable only for damage that you cause. Building fires or camping both tend to be considered damaging activities intrinsically (although I'm unaware of any coherent body of law on the matter), and someone carrying a firearm or a fishing pole can be presumed to be poaching, but simply walking on a private trail that isn't obviously in the curtilage of a dwelling, gated, nor signed, is pretty much in the category of "unlawful, but the law is unenforceable." If a formal trail winds up falling into that circumstance, and a new landowner objects, the trail _may_ be relocated, but it's commoner to negotiate a settlement involving an easement for the trail. In the US, as in the UK, there are also trails that use nearly-abandoned rights-of-way from roads that predate the automobile. Until and unless the landowner successfully pursues an abandonment proceeding in court, the rights-of-way remain open. For this reason, boundary-line trails like https://www.openstreetmap.org/way/456137516 may be mismapped if they're shown as crossing the property line, or the property line may be mismapped, but it's equally likely simply that the property line is indefinite and the trespass, if there is one, is tolerated. It's surely not a reason to abstain from walking a marked path for fear of trespassing. The root cultural assumption has changed in my time. I can recall a time when few farmers cared about walkers in their fields, as long as you kept to the field edges or tracks so as not to trample crops, refrained from disturbing the livestock, and left the gates as you found them. Few farmers troubled to post. Now there are posters everywhere, and a general sentiment that 'everything is forbidden unless explicitly allowed.' Eventually, I expect that the codified law will come to follow the new belief, so I may be a member of the last US generation that remembers a customary freedom to roam. In my state, all navigable waterways belong to the state, and the definition of 'navigable' arose at a time when trading by canoe was common, so you pretty much have the right to paddle across anyone's land, but not to land your boat nor to portage. (And of course, there's a distinction made between types of hazards. You can portage around a fallen tree, because that's held not to affect the 'navigability' of the waterway itself, but not around a waterfall.) In the Common Law countries, there's a whole continuum of case law between 'yes' and 'no'. OSM probably does not want to get into mapping the finest details: "don't map the local law, unless bound to objects in reality." _______________________________________________ Tagging mailing list Tagging@openstreetmap.org https://lists.openstreetmap.org/listinfo/tagging
