Landowner Liability...

Landowner Liability

The Commonwealth of Pennsylvania HAS recognized the benefits of open space in one very significant way.

Americans in general, and Pennsylvanians in particular, participate and value outdoor recreation. Recreational user in Pennsylvania number not in the thousands, or hundreds of thousands, but in the millions. Pennsylvania licenses almost a million hunters annually. Pennsylvania State Parks saw 33.6 million visitors in 2010. The Great Allegheny Passage Rail Trail sees 750,000 visits per year on it 132 miles. The 21 mile York Heritage Rail Trail saw 394,823 visitors in 2007. Many statistics such as this can be found in the publication “Economic Benefits of Tourism, Recreation, Trails, Conservation and Healthy Living”, by the Pennsylvania Environmental Council. Like all statistics, the statistics found in this publication can be used in different ways. However, this publication, which can be found on the web, compiles statistics from many reputable sources and, no matter how you slice it, the numbers are impressive. Total economic impact of tourism in Pennsylvania is estimated at 32.9 billion and supports an estimate 433,000 jobs.

With this much outdoor recreation taking place, you would think the Commonwealth was covered in public lands. The truth is, there are no more than about 4 million acres of public land, including State Forests, State Parks, State Game Lands, and the Allegheny National Forest. The majority of recreational land remains in private hands. Given the number of people taking the field every year, someone is bound to twist an ankle, break an arm or leg, or simply fall off a log. It is essential that landowners feel comfortable that they will be protected from liability if they allow public access for recreation.

The Act

In 1966, the Pennsylvania Legislature passed Act No. 586 of 1966, known as the Recreation Use of Land and Water Act (RULWA). RULWA was aimed at encouraging landowners to make their lands available to the public for recreational use. RULWA promotes this goal by limiting landowner liability for injuries that occur on the land as a result of recreational activity.

Persons Covered

Landowners entitled to RULWA protection are owners, tenants, lessees, occupants or persons in control of the land on which the public is recreating. This would obviously include an individual, and the courts have extended RULWA protection to the Commonwealth and political subdivisions. Owners of easements such as utilities are also protected if they exercise sufficient control over the land.

Activities Covered

RULWA defines recreational purposes to include, but not be limited to, hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports, cave exploration and viewing or enjoying historical archaeological, scenic or scientific sites. Pennsylvania courts have also included bicycling, snowmobiling and joy riding.

Land Covered

RULWA defines land to include roads, water, watercourses, private ways and buildings, structures and machinery or equipment. Courts have concluded that "buildings" and "structures," mean "ancillary structures attached to open space lands made available for recreation and not to enclosed recreational facilities in urban regions." It is this character of the land as “improved” or “unimproved” that is often determinative of whether or not RULWA applies. Recent cases indicate the courts look to many factors to determine whether RULWA applies. These factors are use, size, location, openness and extent of improvement, as well as whether the property has been devoted to exclusive public recreation.

Exceptions

No law would be complete if it did not include exceptions. RULWA preserves landowner liability for "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." Someone cannot ignore obvious dangers they know about (such as an open well) on their property when allowing persons to recreate, but must take some reasonable steps (such as signs) to warn persons of the hazard. In addition, RULWA does not apply where the landowner has charged the plaintiff a fee or admission price to use the land. If an owner leases his land to a hunting club, RULWA would not apply. However, if an owner allows the public to use his land free of charge, she does not lose the benefits of RULWA immunity simply because the users may organize some event which incidentally involves payment. It should be emphasized that no part of this payment can go to the owner and that the payment must not be for recreational use of the property, but rather would be incidental to the event. Bingo at a church picnic would be fine. A “big buck” pool among a group of hunters would not impact on RULWA. However, allowing “free” use of premises but insisting on a “membership” would be problematic and likely abrogate RULWA immunity.

If you are thinking about allowing public recreation and wish to take advantage of the Act’s protection, keep in mind the following:

1. Don’t charge a fee.
2. If you think it’s dangerous, post a warning (even if you are not sure whether it is obvious).
3. If you build something, or change the natural landscape, do it safely, and maintain its safety.

These common sense rules should allow a landowner the peace of mind to allow hunting on their land.

THIS IS INTENDED AS GENERAL INFORMATION AND NOT AS LEGAL ADVICE OR INFORMATION REGARDING INSURANCE POLICIES. NO INFORMATION SHEET OF THIS TYPE CAN ADEQUATELY ADDRESS EVERY INDIVIDUAL CIRCUMSTANCE. IF YOU HAVE SPECIFIC QUESTIONS ABOUT YOUR INDIVIDUAL CIRCUMSTANCES, PROPERTY, INSURANCE POLICY OR OTHER QUESTIONS YOU SHOULD CONSULT YOUR OWN ATTORNEY OR CALL YOUR INSURANCE COMPANY.

Private Roads

The Commonwealth of Pennsylvania has a statute, as do many states and Commonwealths, that allows a private party to exercise the power of eminent domain over a neighbor's property so that no property will remain without access to a public street or way. Given my “Musings on a Commonwealth”, this may seem a strange place to go immediately after, but to me this so simply illustrates the tension and relationship between private interests and rights and the public interest.

So first to the statute. It has old origins, dating from the Act of June 13, 1836, Act No. 169 of 1836. It was amended by Act No. 316 of 1927, P.L. 485 (1927), to provide that the Commonwealth could be a petitioner in certain circumstances. The language is stilted and difficult to read, but provides as follows:

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty six.

36 P.S. §2731.

What this means is layman's terms is that someone can take your property, without your permission, and turn it into their private property. True enough, the conversion is for the limited purpose of a road. However, this is a road that could allow anything from a farm field, to a hunting cabin to a home to a business to a Walmart. There is no provision in the statute itself that such a thing needs to be for a purpose with any intrinsic value.

Now to the philosophy.

It seems as early as 1885 the Supreme Court of the Commonwealth of Pennsylvania recognized the inconsistency of this statute. They stated that to take private property for a private purpose was on its face unconstitutional. In re Road in Plum Creek Township, 110 Pa. 544, 1 A. 431 (1885). The funny thing is that we might question that concept. Our Commonwealth, in fact our very nation, was founded on the concept of personal property and the inalienable right to property. The roots of this go back to England and the Magna Charta.

But despite this obvious inconsistency, the statue has remained valid. In a recent court argument, the attorney representing the landowner who wanted to take his neighbor's property stated that it was “obvious” that it was in the public interest to have all property accessible to a public street or way. Although the attorney did not elaborate upon the reasons, he did reference the case of Mazzante v. McClintock, 976 A.2d 648 (Pa. Cmwlth. 2009). This case discusses the public purpose behind why one neighbor can force the other neighbor to give them their property. It states this public purpose as opening up otherwise inaccessible land for development. Essentially, the reasoning assumes that development of property is good. Conversely, the inability to develop property is bad.

But what makes this so? The Pennsylvania Supreme Court, while refusing to invalidate the statute, divided on the issue and insisted upon more of a showing of public purpose than the indefinite public good shown by the reasoning in Mazzante. Opening of a Private Road for the Benefit of Timothy P. O’Reilly, 607 Pa 280, 5 A.3d 246 (2010). This case has not been finally decided, and may never be decided, as the parties may settle out of court. But that should not stop us from examining the issue.

For the neighbor whose land is taken, the development is almost uniformly negative. However, the level of negativity can range from almost zero for a small access road on a remote section of a large tract, to horrifying for a road right next to one's dream home to be used as access for a junkyard or a mine site or an oil and gas operation. Critics may say that this negativity is compensated by damages. However, the public good could just as easily argue the converse: the neighbor who denies someone access could be forced to pay the landlocked neighbor for the loss in value caused by the landlocking of the property.

But this analysis is not meant to give legal advice. Each situation is different, and each decision will turn on its own facts and the personalities and needs of the people involved. The intent here is to examine the bigger question of what should really be done. Should one landowner compensate another?

There is, of course, another answer. One which serves the common weal and illustrates why this is a good topic to follow the musings on the meaning of a Commonwealth. Land next to open space typically increases in value. This has been referenced in numerous articles. See, “Economic Impacts of Protecting Rivers, Trails, and Greenway Corridors, atfiles.org/files/pdf/NPSecon1.pdf, and the studies compiled therein; Kroeger, Timm, Ph.D., “Open Space Property Value Premium Analysis”, National Council for Science and the Environment 2006 Wildlife Habitat Policy Research Program Project Topic 1H: Development of an Operational Benefits Estimation Tool for the U.S., June 2008. A simple Google search will turn up many more examples. People have been shown to value living and working near open space. The environment is served by wild places which can serve as refuges for animals, plants and even insects. This natural environment serves to clean water through wetlands, clean air through plants and photosynthesis. Even if the land is nothing but rocks and appears to be fallow, it has life on it which provides detritus and food for animals living and being part of ecosystems elsewhere. It is part of the intricate web of life and balance of nature.

Thus, an undeveloped property serves the public in a myriad of ways from mercenary to spiritual. The point is that if the property being undeveloped serves a public purpose, why don't the citizens of the Commonwealth step up and acquire the property for the public good. And if development of a certain property is in the public's best interest (and most assuredly development sometimes is in the public good) then why doesn't the Commonwealth exercise eminent domain to get access to the property. The answer, of course, is that the Commonwealth instead chose to pass a statue that forces the public good to be placed upon individual private citizens. A situation no one should accept.

Only time will tell if the Commonwealth and its citizens will recognize public benefit and put their common finances toward its protection. Only in this way can we also direct what is truly in the public benefit. Finally, it does not leave the acquisition or protection of the public good to private interests and force neighbor upon neighbor.

Musings on a "Commonwealth"...

-->

Something that has interested me is the status of certain “states” as “commonwealths”. Pennsylvania, for instance, is a “commonwealth”. Most of the residents of Pennsylvania know this to some extent. They are used to seeing “Commonwealth of Pennsylvania” on insignias, logos, etc. However, few think of it as anything special and one still hears constant references to the “State of Pennsylvania”.

Black's Law Dictionary defines a Commonwealth as:

The public or common weal or welfare. This cannot be regarded as a technical term of public law, though often used in political science. It generally designates, when so employed, a republican frame of government – one in which the welfare and rights of the entire mass of people are the main consideration, rather than the privileges of a class or the will of a monarch; or it may designate the body of citizens living under such a government.

Sometimes it may denote the corporate entity, or the government, of a jural society (or state) possessing powers of self-government in respect of its immediate concerns, but forming an integral part of a larger government (or nation). In this latter sense, it is the official title of several of the United States (as Pennsylvania, Massachusetts, Virginia, and Kentucky), and would be appropriate to them all. In the former sense, the word was used to designate the English government during the protectorate of Cromwell.

Any of the individual States of the United States and the body of people constituting a state or politically organized community, a body politic, hence, a state, especially one constituted by a number of persons united by compact or tacit agreement under one form of government and system of laws.

Black's Law Dictionary, Fifth Edition, 1979.

Reading this definition, one would think a state and a commonwealth were the same, or at least similar enough not to matter to anyone. A strong case can be made for this interpretation, as the federal government treats states the same, despite their status as a commonwealth (organized BEFORE the federal government existed in the case of Pennsylvania, Massachusetts and Virginia) or a state (whose powers derive from the federal government and the organic statutes authorizing and organizing the state).

But let's think about the first part of the definition and the philosophy that is found there. The common weal or welfare. A form of government in which the welfare and rights of the entire mass of people are the main consideration, rather than the privileges of a class or the will of a monarch. These are powerful thoughts. It is not the party, or the contributor, or even a class of citizens which should be important: it is the common welfare of ALL people. Many laws, create winners and losers in the marketplace. This is totally counter to the concept of the common wealth. Many politicians cater to the special interests which lobby them, rather than the common interests of all people. Interestingly enough, this is logical and actually makes some sense. People need to form together in groups or PACs to have influence or power. However, that is antithetical to the idea of a Commonwealth.

It remains to be seen which fork in the road the people of the Commonwealth of Pennsylvania will take. This is especially true in the areas of real property and natural resources law. The tensions of individual property ownership versus the common interest in our air, water, land, and even timber, coal oil and gas have been touched upon by legislation and courts alike. Despite what some people may wish us to think, the jury is still out. The Commonwealth of Pennsylvania has laws protecting the rights and setting the obligations of all citizens. We may still decide to raise all citizens and work for the common weal, rather than yield to the expedience of certain interests.

It will be how the Commonwealth negotiates this decision process which will set the stage for the future.