STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5330

July 13, 1978

FISH AND GAME:

Recreational Trespass Act

TRESPASS:

Recreational Trespass Act

CONSTITUTION OF MICHIGAN:

Art 10, Sec. 2 (payment of just compensation for taking of private property)

CRIMINAL LAW:

Trespass

The provisions of the Recreational Trespass Act which exempt from criminal prosecution a fisherman wading or floating on a navigable public stream of a length greater than 15 miles and limits his use to the riverbank as closely proximate to the river as possible is not unconstitutional.

The fact that a criminal prosecution may not be sustained under the Recreational Trespass Act does not grant fishermen a legal right to trespass upon the lands of another; the owner of the land has a civil cause of action and, a prosecution may be sustained if the owner or the owner's agent notifies the fisherman to depart and the fisherman refuses or neglects to do so.

Honorable Dennis Cawthorne

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

The Recreational Trespass Act, 1976 PA 323; MCLA 317.171 et seq; MSA 13.1481 et seq, is an act to provide criminal penalties for certain recreational trespasses upon land. 1976 PA 323, supra, Sec. 5(1) states that '[a] prosecution under this act shall be in the name of the people of the state, and shall be brought before a district court of competent jurisdiction'.

1976 PA 323, supra, Sec. 7 states that '[a] prosecuting attorney shall enforce this act and prosecute all persons charged with violating' the act.

It is therefore clear that the act is intended to be enforced by criminal prosecution and therefore a violation of the statute is a criminal act.

The legislature may make the conduct prohibited by the Recreational Trespass Act unlawful since a violation will have a tendency to affect or endanger the public in connection with health, safety, morals or general welfare. See People v Wedlow, 17 Mich App 134; 169 NW2d 145 (1969), 8 Michigan Law & Practice, Criminal Laws, Sec. 2, p 88.

However, in defining the conduct which constitutes a criminal act, the legislature may make certain exceptions which it believes do not constitute a threat to the health, safety, morals or general walfare.

The exemption provided in 1976 PA 323, Sec. 2(3) is therefore, in my opinion, valid since no danger to the public health, safety or morals may be perceived by the fact that it exempts from criminal prosecution only fishermen wading or floating on a navigable public stream of a length greater than 15 miles and limits fishermen to the use of the riverbank as closely proximate to the river as possible. In addition, the exemption from criminal prosecution only applies where it is necessary for fishermen to avoid a natural or artificial hazard or obstruction, such as a dam, a deep hole or a fence.

The fact that a criminal prosecution may not be sustained under the Recreational Trespass Act does not, however, grant to fishermen a legal right to trespass on the lands of another. The State may not grant such a right for to do so would violate Const 1963, art 10, Sec. 2 which provides that '[p]rivate property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.' Therefore, the owner of the land continues to have a civil cause of action against any person who trespasses upon his land and he may enforce this right in a court of law with jurisdiction. See Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916).

It must also be observed that if the owner or occupant, the agent or servant of either of such land abutting the navigable public stream of a length greater than 15 miles notifies such fisherman to depart therefrom and the fisherman refuses or neglects to do so, the fisherman may be charged with a misdemeanor punishable under 1931 PA 328, Sec. 552; MCLA 750.552; MSA 28.820(1).

Frank J. Kelley