Quiksolver
Now, is it trespassing if A enters B's ground to retrieve his personal property? No.
Why? It's both a public and private necessity, facilitated by both the public health hazard and nuisance of a rotting carcass, and the exigent circumstances surrounding A's need to recover the animal quickly so as his meat does not spoil and create waste. "Waste" is a legal term, and the courts will almost always protect a property owners' right to prevent his own assets from going to waste. Necessity is a complete defense to trespassing.
Our feelings of"entitlement" to our propertyaren't necessarilybased on our own personalopinions,but instead, they're rooted inboth a legal fact and our own desire to do what's right, under the circumstances.
You make a good point but I believe the defining issue would be which course of action would result in the most harm. To not be a trespassing case the issue of recovering personal property must supersede the property rights of the owner. As I stated before a lost child would necessitate a legal trespass for recovery. A baseball or deer over the fence would not. The rotting carcass wouldn't be a factor since all animals eventually die in their natural environment and are usually left for nature to consume. If the carcass ended up on someone's front lawn in close proximity to their house that would certainly add to the balance of greater evil and give credence to a necessity defense. Great discussion and kudos to all that participated.
1. A hunter who lawfully shoots a game animal acquires a vested legal right in such animal provided he continues to manifest an immediate intention to possess it by exercising actual physical possession and by tagging.
That is to assume to shoot means to kill. Shooting an animal doesn't necessarily mean to kill...using my experience LOL. Then again I have run into some characters who shot at an animal wounding itand considered it to be their deer even years later.
