STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5283

March 29, 1978

TRESPASS:

Recreational Trespass Act

RECREATIONAL TRESPASS ACT:

Retrieval of a dog on private property

FISH & GAME:

Recreational Trespass Act

A hunter who enters a farm or an adjacent farm wood lot without written permission of the owner, his lessee or agent, does not violate the Recreational Trespass Act if the entry was made solely for the purpose of retrieving his dog. Under these circumstances, however, the hunter has committed a trespass in violation of Section 552 of the Penal Code and is subject to common law liability in an action by the person who has the possessory right to the land if he refuses to depart upon demand.

The owner of a dog who, without carrying a firearm, enters a farm or an adjacent farm wood lot without permission of owner, his lessee or agent, to retrieve his dog does not violate the Recreational Trespass Act if his purpose is solely to retrieve his dog. If he enters the land with a firearm, it is a question of fact for the court or jury to decide whether the entry was made for the purpose of hunting.

Honorable Kerry Kammer

State Senator

The Capitol

Lansing, Michigan 48901

Honorable Thomas J. Anderson

State Representative

The Capitol

Lansing, Michigan 48901

You request an opinion concerning the following situation:

Also, if the common law applies in this situation, please let us know what the common law is.

1976 PA 323; MCLA 317.171 et seq; MSA 13.1482(1) et seq, is known as the Recreational Trespass Act. Its basic purpose is to regulate certain trespass upon any lands and to provide criminal penalties for violation of the statute.

In Section 2(2) of the Recreational Trespass Act, supra, the legislature has made it unlawful for any person to enter upon farm lands or connecting farm wood lots for the purpose of hunting, fishing, or operating a snowmobile, off-road recreational vehicle, or other motorized vehicle without the written consent of the owner, his lessee, or agent, whether or not the farm lands or connecting farm wood lots are fenced, enclosed or posted.

Prosecutions under the Act are to be brought before a district court in the county in which the offense was committed pursuant to 1976 PA 323, supra, Sec. 5(1) and in Subsection (2) of the aforesaid section, the legislature has provided:

Violations of the Act are punishable as misdemeanors in accordance with 1976 PA 323, supra, Sec. 9.

The Recreational Trespass Act, supra, is a penal statute and must be strictly construed. Club Holding Co v Flint Citizens Loan & Investment Co, 272 Mich 66; 261 NW 133 (1935). The mere presence of a dog on the farm lands or wood lots connected thereto without the written consent of the owner, his lessee or agent, in itself, does not constitute a violation by its owner of the Recreational Trespass Act, supra.

The owner of the dog who enters, without the written permission of the owner, his lessee or agent, upon the farm lands or wood lots connected thereto to retrieve his dog would not violate the Recreational Trespass Act, supra, if his purpose were solely to retrieve his animal. His entry on the farm land of another without a firearm would demonstrate his intent to enter the land not for the purpose of hunting, but solely to retrieve his dog. If he entered the land with his firearm, the court or jury in a prosecution brought under the Recreational Trespass Act, supra, would be confronted with a question of fact as to whether the entry was made for the purpose of hunting in light of the statutory presumption found in the Recreational Trespass Act, supra, Sec. 5(2), which makes his presence on farm lands or connecting wood lot without written consent of the owner, his lessee or agent, prima facie evidence of unlawful entry.

It must also be observed that if the owner of a dog entered the farm land or connecting farm wood lots to retrieve the dog without the written consent of the owner, his lessee or agent, and the person would remain on the farm land or connecting farm wood lots after being notified to depart therefrom by the owner or occupant, the agent or servant of either, the hunter seeking his dog may also be charged with a violation of 1931 PA 328, Sec. 552; MCLA 750.552; MSA 28.552, whether or not he carries a firearm with him when he enters and remains on the premises. 1931 PA 328, Sec. 552, supra, makes it a misdemeanor for any person, willfully entering the lands of another without lawful authority, to remain thereon after being notified to depart therefrom by the owner or occupant, or their agent or servant.

Therefore, it is my opinion in answer to your first question that if a hunter enters a farm or an adjacent farm wood lot without written permission of the owner, his lessee or agent, he would not violate 1976 PA 323, supra, if he entered the farm or adjacent farm wood lot solely for the purpose of retrieving his dog. If he entered the farm or adjacent farm wood lot in possession of his firearm, he may be charged with violation of the Recreational Trespass Act, supra, and the court or jury would be confronted with the question of fact as to whether or not he intended to hunt on the farm or adjacent farm wood lot without the written permission of the owner, lessee or agent. Should the hunter enter the farm land or connecting farm wood lot for the purpose of retrieving his dog and the owner, lessee or his agent notify him to depart therefrom, and if he were to refuse to depart therefrom, he may be charged with violation of 1931 PA 328, Sec. 552, supra.

In your second question you ask whether a remedy will lie at the common law where a hunter, without written permission of the owner, enters farm lands or an adjacent farm wood lot, to retrieve his dog.

The Michigan Supreme Court, in Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916), considered the right of an owner of private property to maintain an action in trespass against a defendant who, without his permission, invaded his property, a small, non-navigable sheet of water, for the purpose of fishing. In upholding the right of the public to fish in navigable waters, the Court, nevertheless, found that the small, shallow and disconnected sheet of water lay entirely upon the property of plaintiff-property owner, could only be reached by invading private property, and is not navigable. The Court concluded:

In Douglas v Bergland, 216 Mich 380; 185 NW 819; 20 ALR 197 (1921), plaintiff fisherman sought to recover damages from the defendant for failure to notify plaintiff of the change in the rollways on a navigable lake. The Court concluded that the plaintiff's right to fish in the waters of a navigable lake did not carry with it the right to trespass on the lands of the defendant or to appropriate his property in the exercise of the right to fish, quoting with approval the holding in Giddings v Rogalewski, supra, that every unauthorized intrusion upon private lands is a trespass for which an action will lie for at least nominal damages.

Research reveals the decision of the District of Columbia Court of Appeals in Shehyn v US, 256 A2d 404 (1969), where the Court refused to convict the defendant of an assault on one Blanchard, his neighbor, upon whose land he entered to retrieve his cat. The District of Columbia Court of Appeals relied upon Stuyvestant v Wilcox, 92 Mich 233; 52 NW 465 (1892) for the proposition that the owner of personal property may recapture it and take it into his possession whenever and wherever he may peaceably do so. This is a clear misreading of Stuyvestant v Wilcox, supra. In Stuyvestant v Wilcox, supra, the plaintiff conveyed his farm to the defendant in consideration of an agreement for life support to be furnished by the defendant. Plaintiff was living on the property with the defendant under such agreement. A disagreement arose over ownership of plaintiff's personal property. In returning from a visit to their son, plaintiff and his wife announced their intent to no longer live with defendant. Defendant refused to allow plaintiff to remove his personal property, including a plane. An assault was committed upon him in the struggle over possession of the plane. Defendant claimed plaintiff was a trespasser on his land. The Court held that the plane was the property of the plaintiff and he had a right to take the plane into his possession and to remove it. The Court expressly found:

It must be concluded that Stuyvestant v Wilcox, supra, holds only that a person may take into his possession his own property and remove it from premises when he has a lawful right to be on the premises. Shehyn v US, supra, is, therefore, not persuasive.

It is my opinion, therefore, in response to your second question, that a hunter who enters, without written permission of the owner, upon the farm land or a connecting farm wood lot to retrieve his dog has committed a trespass and is subject under the common law at least to nominal damages.

Frank J. Kelley