The Honorable James Scott State Senator Rt. 1, Box 82-A Warren, AR 71671
Dear Senator Scott:
This is in response to your request for an opinion on the following question:
Where a parcel of land, cultivated or timber, is properly posted under the existing statutes of the state of Arkansas and this land is covered by temporary flooding, a person enters this land by boat, or other floating conveyance, the property boundaries are clearly posted or the owner has personally notified the person he has entered upon private property, has that person committed illegal entry into private property?
If the land in question has been properly posted, or notice has been properly given, the person nevertheless proceeds to enter upon the land by boat or otherwise, it may be concluded that illegal entry has occurred. This assumes, however, that the posting is proper or that the notice is in accordance with statutory requirements, and that consent to enter has not been provided.
With regard to posting, it should be noted that legislation was passed during the 1989 regular session clarifying the posting law of the state. Acts 1989, No. 35. This act was approved by the Governor on February 10, 1989, but does not contain an emergency clause. It will therefore become effective ninety (90) days after the adjournment of the regular session (July 3). I have enclosed a copy of the act for your convenience.
Arkansas Code of 1987 Annotated 5-39-304 sets forth the method(s) by which notice to cease entering may be given. This provision states in pertinent part as follows:
(a) The owner, agent, lessee, or assigns of any lands including farm, timber, or otherwise may notify any person by registered letter, by notice served by any official authorized to serve process, or by personal oral notification to cease any trespass, or to stay off the premises of any property belonging to the owner, his agent, or assigns.
(b) Notice shall specify the lands by description containing section, township, and range.
(c) Any person receiving notice shall immediately cease any trespass or entrance upon the described lands of the owner.
Arkansas Code of 1987 Annotated 5-39-301 makes it a misdemeanor violation to ride, range, or hunt upon the enclosed grounds or posted farmlands of another without the previous consent of the owner. See also, A.C.A. 15-43-103.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.