Trespass Ab Initio


Trespass ab initio is a form of trespass.  The term trespass refers to an act of intrusion into another person’s property.  Ab initio is a Latin term meaning, “from the beginning.”   A person is said to have committed trespass ab initio, when s/he has abused the authority granted by law to enter a property or land.

Trespass ab initio is a doctrine developed by early common law.  Accordingly, a person who enters a land in exercise of his/her duty authorized by law is said to have comitted trespass to land, or property when s/he abuses the power conferred upon him/her by causing damage to the property.  The person will be held liable not only for his/her misconduct but also for the lawful entry into the land.  Thus, in a trespass ab initio claim, the lawful entry will be considered as trespass, because the privilege is abused and harm is caused to another person’s legal interest.

Conditions constituting trespass ab initio are:

  1. the authority abused must be an authority granted by law and not by an individual[i];
  2. there must be some positive act of misconduct, and not a mere omission or neglect of duty[ii]

A person authorized by law will be held liable for the tortuous act, if s/he has misused the privilege to enter another person’s legally protected property[iii].  Trespass ab initio occurs when any unnecessary or unreasonable act which is caused deliberately to harm another person’s interest.  Also it occurs when the authorized person fails to take reasonable care to prevent an unreasonable harm to the legally protected interest of another[iv].

In some cases, a person can delegate his/her privilege to a third party to enter another person’s land.  In such case, the person delegating the privilege will be held liable for any abuse of power by the third party[v].  Trespass ab intio also extends to harmful acts caused to chattels.  However a person who holds the privilege will not be held liable for harmful acts caused accidentally[vi].

Currently, a person who is found guilty of trespass ab initio is liable for punitive damages. This rule came in effect after the tort law started recognizing punitive damage[vii].

In McGuire v. United States, 273 U.S. 95 (U.S. 1927), a search warrant was issued to revenue agent officers to enter and search the premises possessed by Mcguire.  The officers acting under the warrant searched the premises discovering several gallons of intoxicating liquor which they seized.  They destroyed the liquor without the court order or other legal authority except one quart of whisky, which they retained as evidence.  The court held that the officers by destroying the seized liquor became trespassers ab initio.  Thus, they lost the protection and authority conferred upon them by the search warrant.  However, the court ruled that the sample of liquor can be used as evidence.

[i] Sheftall v. Zipperer, 133 Ga. 488 (Ga. 1909).

[ii] Louisville & N. R. Co. v. Bartee, 204 Ala. 539 (Ala. 1920).

[iii] Brite v. Pfeil, 334 S.W.2d 596 (Tex. Civ. App. San Antonio 1960).

[iv] Id.

[v]Tubbs v. Tukey, 57 Mass. 438 (Mass. 1849).

[vi] Id.

[vii] Gibson v. Holmes, 78 Vt. 110 (Vt. 1905).