Evidence


In an action for trespass, it is incumbent upon the plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass[i].

The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence[ii].  In a trespass action, the general rules of evidence apply.

Generally, punitive damages are not recoverable in the absence of proof of actual damages.  However, in an action for intentional trespass to land, the law presumes that a plaintiff is damaged without the necessity of proof of actual damages[iii].

Where there occurred a trespass, general damages do not have to be proven with any amount to an absolute certainty for recovery of such damages[iv].

A person who enters upon the land of another, without the owner’s permission, whether innocently or by mistake, is a trespasser[v].  Furthermore, nominal damages are presumed from a trespass even where the owner has suffered no actual injury to his/her possessory interest.

A purchaser of real estate was a bona fide purchaser for value without notice is an affirmative defense and must be sustained by competent proof[vi].

Further, the proven facts must be inconsistent with innocence to uphold a conviction for criminal trespass on circumstantial evidence[vii].

Parol evidence is not necessarily admissible in a trespass action.  Admission of certain evidence is a matter of law instead of a mixed question of law and fact[viii].

When the subject property is publicly owned and maintained, the accused is presumed to have a license and privilege to be present and may not satisfy their burden of proof[ix].

In trespass actions, the burden of proof rests upon the plaintiff and the plaintiff must show by clear and convincing evidence and not by mere guessing or conjecture that the defendant was in some way liable[x].

Once the moving party has met its burden, the opposing party must present evidence that demonstrates the existence of some disputed factual issue[xi].  It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.  Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court.

To prove trespass a plaintiff must show that the defendant made an unauthorized entry on the plaintiff’s land[xii].  In Stone Resources, Inc. v. Barnett, 661 S.W.2d 148 (Tex. App. Houston 1st Dist. 1983), the court held that where the petition alleges damages by reason of the injury done to the property after the defendant’s entrance on the property, lack of consent need not be proved.

In Zagaroli v. Pollock, 94 N.C. App. 46 (N.C. Ct. App. 1989) the court held that there was no error in a trespass action in the admission of a survey map where defendants failed to request a limiting instruction or to object specifically to the admission of the map for substantive purposes.  To be admissible, maps, surveys and the like must be authenticated and verified as accurate and true by a qualified witness.

[i] Booth v. Madison River Communs., Inc., 851 So. 2d 1185 (La.App. 1 Cir. June 27, 2003).

[ii] Sellers v. St. Charles Parish, 900 So. 2d 1121 (La.App. 5 Cir. Apr. 26, 2005).

[iii] Conner v. Lucas by & Through the Estate of Lucas, 141 Ore. App. 531 (Or. Ct. App. 1996).

[iv] Lanier v. Burnette, 245 Ga. App. 566 (Ga. Ct. App. 2000).

[v] Burger v. Singh, 2006 NY Slip Op 3038 (N.Y. App. Div. 2d Dep’t 2006).

[vi] Wicker v. Harvey, 937 So. 2d 983 (Miss. Ct. App. 2006).

[vii] McGinnis v. State, 183 Ga. App. 17 (Ga. Ct. App. 1987).

[viii] Hand v. Pettitt, 258 Ga. App. 170 (Ga. Ct. App. 2002).

[ix] People v. Leonard, 62 N.Y.2d 404 (N.Y. 1984).

[x] Johns v. Shaler, 240 Pa. Super. 129, 131 (Pa. Super. Ct. 1976).

[xi] Socha v. Bordeau, 277 Conn. 579 (Conn. 2006).

[xii] Sentry Enterprises, Inc. v. Canal Wood Corp., 94 N.C. App. 293 (N.C. Ct. App. 1989).