By Andrea Townsend
Effective July 1, seeing purple could mean you are about to commit trespass. Passed as part of House Enrolled Act 1233, Indiana’s “Purple Paint Statute” means that a purple paint perimeter serves the same purpose as a “No Trespassing” sign.
Before July 1, criminal trespass required notice that no entry is allowed on the property. That notice had to come via personal communication, court order or the posting of a notice such as a “No Trespassing” sign. Posted signs, however, can turn up missing or damaged due to theft, wind or fading. Without a posted sign, it becomes much more difficult to prosecute trespass. The impetus behind purple paint statutes is to provide landowners with a second level of protection in these cases.
Pursuant to Indiana Code section 35-43-2-2(c)–(d), effective July 1, landowners may mark the perimeter of the area where entry is denied with purple paint on either trees or posts. The purple marks must be readily visible to any person approaching the property. Generally, the bottom of each mark must be between 3 and 5 feet from the ground. If marking trees, each mark must be a vertical line of at least 8 inches in length and not more than 100 feet from the nearest other marked tree. If marking/capping posts, each mark must cover at least the top 2 inches of the post and be not more than 36 feet from the nearest other marked post.
A caution: If a purple mark would be visible from both sides of a fence shared by different property owners or lessees, all of the owners or lessees of the properties must agree to post the properties with purple marks.
A growing number of other states, at least 21, have “purple paint statutes” (with variation in the specific color of paint). These states include: Alabama (Ala. Code § 13A-7-1(4)); Arizona (Ariz. Rev. Stat. Ann. § 17-304(C)(3)); Arkansas (Ark. Code Ann. §§ 18-11-404 to -405); Florida (Fla. Stat. § 810.011(5)(a); specifies that the words “No Trespassing” be painted); Idaho (Idaho Code Ann. § 361603(a)(2)); Illinois (720 Ill. Comp. Stat. 5/21-3(b-5)); Kansas (Kan. Stat. Ann. § 32-1013(b)); Maine (Me. Rev. Stat. tit. 17-A, § 402(4)); Maryland (Md. Code Regs. 08.01.05.01(B)(2)); Missouri (Mo. Rev. Stat. § 569.145); Montana (Mont. Code Ann. § 45-6-201(2)(a)); Nebraska (Neb. Rev. Stat. § 37-724(2)); Nevada (Nev. Rev. Stat. § 207.200(2)); North Carolina (N.C. Gen. Stat. § 14-159.7(2)); Oregon (Or. Rev. Stat. § 105.700(2)); Tennessee (Tenn. Code Ann. § 39-14-405(c)(2)); Texas (Tex. Penal Code Ann. § 30.05); Utah (Utah Code Ann. § 23-20-14(1)(d)); Virginia (Va. Code Ann. § 18.2-134.1); West Virginia (W. Va. Code § 61-3B-1(4)(B)); and Wisconsin (Wis. Stat. § 943.13(2); specifies that the words “private land” be painted). At least two other states, Ohio and Oklahoma, have considered adopting similar legislation. And now Indiana has joined the ranks.
Why purple? Of the states that have adopted a “purple paint statute,” the majority (11 of the 21 identified above) have selected purple as the color of choice, likely to avoid confusion with other colors commonly used for marking underground utilities and surveying. Red is the uniform color for electric power lines; orange for communications; yellow for gas, oil and steam; green for sewers and drain lines; and blue for water. White is used for proposed excavation limits or routes, and pink is used for temporary survey markings.
Some states vary the requirements for painting a perimeter depending on the type of land being marked. Arkansas, for example, requires that marks be 100 feet apart for forested land, but 1,000 feet apart for non-forested land. Compare Ark. Code Ann. § 18-11-404 with Ark. Code Ann. § 18-11-405. Similarly, Nevada requires intervals of not more than 1,000 feet for land used for agricultural purposes or for herding or grazing livestock, and intervals of not more than 200 feet for other types of land. Nev. Rev. Stat. § 207.200(2). Land used for agricultural/herding/grazing purposes also must be marked on each side of all gates, cattle guards and openings that are designed to allow human ingress to the area. Id. Indiana’s Purple Paint Law, however, is the same for all land types.
The new law, part of House Bill No. 1212, was authored by Rep. Steve Bartels (R). Coauthors included Rep. Wendy McNamara (R), Rep. Doug Miller (R) and Rep. Linda Lawson (D). Sen. Mark Messmer (R) served as sponsor.
Indiana also has a law barring hunting without consent on privately owned land. This law, Indiana Code section 14-22-10-1, does not require notice that entry is not allowed. The new law does not impact this statute. It also does not impact the elements of civil trespass. See Reed v. Reid, 980 N.E.2d 277, 294 (Ind. 2012).
It could, however, help prevent someone from accidentally trespassing on another’s land.
Landowners can still use no trespassing signs, but Indiana’s new Purple Paint Statute provides an enduring, economical and easy way for Indiana landowners to protect their property from trespassers.•
• Andrea Townsend is an associate at Plews Shadley Racher & Braun LLP. Opinions expressed are those of the author.