Torts Notes - Trespass to Land

Trespass to land provides a legal remedy for intrustions upon one's real property, that is, on land owned or occupied by the plaintiff.

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
a.  enters the land in possession of the other, or causes a thing or a third party to do so, or
b.  remains on the land or,
c.  fails to remove from the land a thing which he is under a duty to remove

Trespass is an intentional tort.  In order to be a trespasser, the actor must act with a purpose to cause the intrusion on land, or with substantial certainty that she will cause it.

Various corollaries of intent analysis will also apply, such as the doctrine of transferred intent. 

A mistake by the actor is treated the same way in analyzing intent for trespass as it is for battery or assault. 

Damage to land is not an element of trespass to land.

actions for trespass to land confirm the title of the property owner and prevent trespassers from acquiring easements or adverse posession rights.

The effect of consent:  one who effectively consents to conduct of another intented to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.

The action for private nuisance provides a remedy for interference with the use or enjoyment of land that is less tangible, such as operating machinery on adjacent land that causes continuous vibrations, excessive noise, or foul odors.

Nuisance:  a condition or activity that interferes with the possessor's use and enjoyment of her land by incorporeal or non-trespassory invasions to such an extent that the landowner cnanot reasonably be expected to bear without compensation.

trespass can occur when a person gives permission to put up a structor or chattel or other thing that the actor or his predecessor placed in a reasonable manner with consent of the property owner if it is not removed after the property owner's consent has been effectively terminated.

The law recognizes the privilege to enter the property of another if necessary to avoid serious harm to the person.  This privilege is an "incomplete privilege" because although a person may enter the land, they are liable for any harm they create to it.

Trespass occurs if a person directs somebody else to trespass.  They are acting on intent which satisfies the "substantial certainty" requirement.

Nuisance and trespass are frequently blurred if the nuisance creates a detectable physical entry onto another's property.  However, when detectable physical entry is slight (by causing invisible particles to accumulate on property, for example), courts are likely to find that it is necessary to prove substantial damages to the property.  Contrast to traditional trespass law which holds trespass actionable at least for nominal damages without proof of any resulting damage.

A nuisance musbt be based on continuous behavior that interferes with the land owner's enjoyment of the property.

A trespass may be committed on, above or below the surface of the property.

If a landowner is aware of a trespass and does not remedy it, the trespasser may acquire easement rights over time.  Easements may be sold to preserve landowner rights and compensate landowners for the easement.

A renter can bring forth an action for trespass:  A person is in possession of the land and thereby able to maintain an action for trespass if he is in occupancy of land with intent to control it.  The actual landowner in this case has "reversionary right" to the land, meaning the land will revert to their control at the end of the rent/lease arrangement can not sue for trespass.  The party currently controlling the land must bring the action.  However, an out of posession property owner may recover for an injury to the land by a trespasser which damanges the ownership interest.