This weekend marks the beginning of the 2019 Firearm Deer season in Minnesota. Thousands of deer hunters will descend on rural Minnesota.
As a deer hunter (and civil litigation attorney), I read the occasional story about the trespasser that shoots a trophy buck on somebody else's land. While these trophy buck stories are rare, it's actually very common for hunters to experience legal issues while out hunting.
This article will look at some common legal issues that hunters experience, including hunter harassment, trespassing, property line disputes, and hunting access issues.
Most hunters carry with them the free hunting regulations book from the Minnesota DNR. Here is the 2019 version.
The handbook is helpful and easy to digest. While it covers a wide variety of issues, it's the DNR summary of laws and regulations. It's not the actual statute or regulation. If you are cited for a hunting-related offense, a judge looks to the actual statute or regulation, not the DNR handbook. The handbook is usually pretty accurate, but you might have a due process argument if the handbook is incorrect and misleads you.
If you have a specific legal question about a hunting law, you should consult the Minnesota Revisor's website. Chapter 97B of Minnesota Statutes has many hunting laws, as do surrounding chapters. DNR hunting regulations are contained at Chapter 6232 and surrounding chapters.
While the DNR handbook is a good summary guide, remember that many other criminal and civil laws impact hunting.
Few things are more frustrating than being interrupted while peacefully and legally hunting. To address that situation, Minnesota has enacted hunter harassment laws.
Harassment issues generally arise from competing hunters or angry neighboring landowners. Examples might include intentional acts where people:
- stand too close to your stand;
- make excessive noise near you;
- mess with your hunting decoys, stands, blinds, and gear;
- block a trail to prevent a deer hunter from accessing his stand;
- use a blowhorn to keep animals away from a hunter; and
- many other things.
Minn. Stat. § 997A.037 prohibits hunter, trapper, and angler harassment. Usually, the criminal offense is a misdemeanor. Here is the general interference rule from that statute:
“A person who has the intent to prevent or disrupt another person from taking or preparing to take a wild animal or enjoyment of the out-of-doors must not disturb or interfere with that person if that person is lawfully taking or preparing to take a wild animal. "Preparing to take a wild animal" includes travel, camping, and other acts that occur on land or water where the affected person has the right or privilege to take lawfully a wild animal.”
It is also a misdemeanor to disturb the animals in a way that prevents the person from lawfully hunting.
The statute says that a person harassing hunters must remove himself or herself from public lands. Likewise, it would be a trespass if they are harassing hunters on private land.
If the person ignores your request to leave, call the Sheriff or Game Warden to come out and remove him. He can be cited and removed. Collect any pictures from your cell phone or game camera, and report your observations to the officer.
Of course, this is a major interruption to your hunt, but you may at least be able to bar that person from your hunting area in the future.
Trespass violations are among the most common issues that arise during deer hunting. For example, officers issued over 337 trespass citations during the 2012 deer season. The total number of complaints may be 1,000 or more per deer season.
The best way to avoid trespass issues is to post “no trespass” signs on your property, mark the boundaries with fences or other markers, and to warn people that have a history of crossing your property line. If you had past issues with a property line, consider speaking to a surveyor to mark the line and an attorney to take any legal action. These are proactive steps to avoid disputes during hunting season.
If another hunter strays onto your property, call the Sheriff or Game Warden to make a complaint. Deputies and officers can cite the person, who will likely have to appear before a judge. This is an interruption to your hunt, and it may take time for the officer to respond to your location. But the trespasser will get the message.
The general criminal trespass law is Minn. Stat. § 609.605. It is a misdemeanor if a person intentionally:
- interferes unlawfully with a monument, sign, or pointer erected or marked to designate a point of a boundary, line or a political subdivision, or of a tract of land;
- trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor;
- returns to the property of another with the intent to abuse, disturb, or cause distress in or threaten another, after being told to leave the property and not to return, if the actor is without claim of right to the property or consent of one with authority to consent;
- returns to the property of another within one year after being told to leave the property and not to return, if the actor is without claim of right to the property or consent of one with authority to consent; or
- takes other similar actions.
There is a similar criminal trespass offense under Minn. Stat. § 97A.315 and is more specific to hunting. Under that gross misdemeanor statute, a person may be guilty if he:
(1) knowingly disregards signs prohibiting trespass; (2) trespasses after personally being notified by the landowner or lessee not to trespass; or (3) is convicted of violating this section more than once in a three-year period.
In addition to the criminal punishment, the DNR can void your fish and game licenses, and can deny you a license for two years.
Some of the criminal trespass offenses require the owner to “post” no-trespass signs on the property. For example, Minn. Stat. § 97B.001, subd. 4(b) states that the owner can prohibit outdoor recreation by posting signs at least once each year that:
- state “no trespassing” or similar terms;
- display letters at least two inches high;
- are signed by the owner, occupant, lessee, or authorized manager, or have that person's name and number; and
- are either: (a) at intervals of 1,000 feet or less along the boundary of the area, or in a wooded area where boundary lines are not clear, at intervals of 500 feet or less; or (b) mark the primary corners of each parcel of land and access roads and trails at the point of entrance to each parcel of land except that corners only accessible through agricultural land need not be posted.
There is a slightly different posting rule for purposes of the trespass offense in Chapter 609. The takeaway is that you should post your property with no-trespass signs. It will prevent people from accidentally entering your property, but also ensure that intentional trespassers can be prosecuted.
If you put up signs, be careful. You cannot put up a false sign prohibiting trespassing on land that you do not own. Potentially, that could subject you to a citation.
Retrieving Wounded Deer
What happens when you shoot a deer, but it runs onto someone else's land? Can you go after it? Yes, you may have a limited right to enter someone else's land to get the wounded deer.
As a practical matter, first contact the owner if you have his or her information. You don't want him to accidentally shoot you when you enter the land, but he might also be more reasonable if you reach out rather than bumping into him in the woods. Consent is the best approach.
If you cannot contact the neighbor, check to see if the land is posted with no-trespass signs. If so, don't enter. If you've been warned by the owner not to enter within the last year, don't enter. You may have to call the Game Warden to help recover the wounded or dead deer.
If there are no signs and you haven't been warned by the owner within the last year, you may be good to enter. Minn. Stat. § 97B.001, subd. 5 indicates that you can go:
“on foot [ ], without permission of the owner, occupant, or lessee, [to] enter land that is not posted [ ], to retrieve a wounded animal that was lawfully shot. The hunter must leave the land immediately after retrieving the wounded game.”
Can you bring your gun? Possibly. I'd suggest leaving it in the car if you can. But the statute doesn't appear to prohibit a gun. The statute prohibits a gun while looking for your hunting dog on somebody else's land, but there doesn't appear to be a prohibition for recovering wounded deer.
The bottom line is that you should take proactive steps to prevent trespass issues before hunting season, but the Game Warden or Sheriff can help resolve criminal trespass issues once hunting begins.
A trespasser can be criminally prosecuted, but you may also have a civil claim for trespass. You may be entitled to some money damages and an injunction against the person.
The civil tort of trespass includes “any unlawful interference with one's person, property, or rights, and requires only two essential elements: a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.” See Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).
Damages for trespass may include:
- The diminished value to your land;
- Cost of repairing or restoring any damage the trespasser caused to the land;
- The reasonable rental value of the property if you were deprived of use;
- The amount of any monetary benefit the trespasser got from your land;
- Pain and suffering (only available in rare circumstances);
- Punitive damages if the acts were deliberate and the factors under Minn. Stat. § 549.20, subd. 3 justify it.
- Treble (triple) damages under Minn. Stat. § 548.05 if the person destroyed wood, timber, lumber, hay, grass, or other personal property.
- Other damages to your land or personal property.
Most trespass cases will not result in significant money damages, especially if there was a simple crossover onto your property. Practically speaking, you may end up paying more in attorney's fees than what you can recover in money damages. In many cases, the trespasser will face more punishment and fines in a criminal trespass case than a civil trespass case. As a civil litigation attorney, I have found that people are surprised at how limited the civil trespass remedy can be. However, trespass is usually only one of several claims we can make in the case.
If the trespasser has clearly damaged your property, you should consider a civil trespass lawsuit. It may take several months to litigate, so you should speak to an attorney soon after hunting season. This will help ensure that the issue is resolved before the next hunting season. If you have questions about whether you should move forward with a civil lawsuit, read our FAQs page about Civil Litigation in Minnesota.
Boundary Line Issues
Trespass requires that the person be on your land. Do you know your boundary lines? If you know your lines and have a phone or trail cam picture of the person within your boundaries, you may have a good trespass claim. If you don't know your boundaries, it may be hard to prove any criminal or civil trespass. Here is a page I wrote about boundary line issues.
Identifying the Lines
How do you find your property lines? Here are a few good tips:
- Fences or markers are a good starting point. If they have been in place and separating different parcels for more than 15 years, you may have a good adverse possession claim to that land (even if it isn't already within your property description).
- Check your county website for electronic tax maps. The boundary lines for your land may be roughly shown on the map. However, these are not exact boundary lines, so you should only use it to begin your process.
- Look at the legal description in your deed and see if you can track the line from any reference points. If you don't have a copy, you can get one from the County Recorder's Office.
- Check any surveys that have been completed for your property, and ask the surveyor if he or she marked the lines.
- Get a survey. The cost depends significantly on the size of the property and the time required of the surveyor. However, a survey should be able to pinpoint the location of the boundary line described in your deed.
- Talk to your title insurance company. If there is a dispute over a boundary, your title insurance policy may step in and pay for a survey and lawyer to sort out the problem. You would first want to check any list of exceptions in the title policy. If there is no exception, consider contacting the title insurer to see if they will cover any issues.
Additionally, you could talk to a lawyer. Your lawyer could pursue several legal remedies to confirm your boundary line, such as a quiet title action (see here for more info).
Here is a basic list of potential remedies:
- Quiet title action, which is also known as an action to determine adverse claims under Minn. Stat. § 559.01.
- Declaratory judgment under Minn. Stat. § 555.01.
- Adverse possession claim.
- Prescriptive easement claim.
- Action to determine boundary lines under Minn. Stat. § 559.23.
- Ejection action if there is a continuing encroachment problem.
It's not uncommon for a trespass dispute to expose a potential problem with your legal description or boundary line. If so, it is best to take prompt action to address it, especially if you will be selling the land soon or want it resolved before hunting season.
Hunting Leases, Licenses, Easements, and Permission
Many people hunt land owned by other people. The landowner may give you permission to hunt the land through verbal permission, an easement, license, lease, or other formalized right. Each could give you a valid right to hunt the land. But there are some differences with these arrangements.
An easement is a formal right to use land for a particular purpose. Easements are filed with the County Recorder. The easement should describe, among other things, the land being used, the scope of use for the land, the duration of the use, and the person(s) granted the easement. The titled owner should sign the easement being recorded. Note that if you do not limit the duration, you may end up binding future owners of the property, so be careful.
A license is also a right to use someone's land for a particular purpose. These may be less formal and not recorded, especially if the person granting the license has less than a full ownership right to the land (i.e., a renter of the land giving you permission). While the license could be verbal, it's better to have something in writing to make it enforceable. Be aware that the person giving you the license can only give the rights that he has in the land. For example, if a renter only has a right to use a home on a farm site, the renter likely cannot grant rights to hunt the woods or the field areas. In this case, you should get permission directly from the owner.
A lease generally gives a person or persons the exclusive right to possess the land for his general purposes. Leases are flexible and can define the scope of use for the land. Oral leases can sometimes be valid, but they generally should be in writing. A lease is an enforceable contract, so you should be specific about the land, price, length, uses, and other aspects of the lease arrangement. If the tenant breaches the lease for hunting land, the owner can try to evict under similar laws as residential evictions.
Disputes sometimes arise in these arrangements. The dispute may center on:
- the description of the land;
- scope of use;
- persons entitled to use the land;
- duration of the use;
- shared vs. exclusive use;
- use after the property is sold;
- automatic renewals;
- right of first refusals; and
- payment disputes.
You should resolve these main issues with the person giving you permission. You might want to speak to an attorney if the arrangement is high-cost, long-term, or involves legal questions about boundary lines, zoning, or land use issues. Likewise, hunting land is sometimes caught up in family trust disputes or estate disputes.
Potentially, your hunting could be interrupted by a nuisance from a neighboring owner. A private nuisance under Minn. Stat. § 561.01 is:
“Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. An action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.”
Nuisance is defined broadly and could include smells, noise, vibrations, debris, water, sewage runoff, animals, or many other things. Each of these things could impact your hunt.
While you are probably more likely to experience trespass, harassment, or damage to property, you might have a nuisance remedy under some circumstances. Private nuisances are generally civil issues involving a civil lawsuit. A court can issue injunctions to prevent the nuisance, both temporarily and permanently. You may also be entitled to damages for loss of use.
Practically speaking, a nuisance action may take several months to litigate if there is no settlement. If you observe a nuisance before hunting season, you may have time to get an injunction to stop the activity before your hunt. Once hunting season begins, you may be better off trying to report the issue as a trespass and see what the Sheriff or Game Warden can do. Courts are closed on the weekends, and it may take a few days for an attorney to file documents and get an injunction.
The bottom line is to be proactive in dealing with legal issues that may impact your hunt. Secure your property rights a few months before the season, if you can. That will also give you time to scout the property and get a sense of the boundary lines and neighbors. Have fun and good hunting!