Elements


Trespass to land occurs when a person directly enters upon another’s land without permission; and remains upon the land, places or projects any object upon the land.

A person is subject to liability for trespass to real property for intentionally entering another’s land.  The elements of trespass to real property are[i]:

  • possession by the plaintiff at the time of trespass;
  • unauthorized entry by the defendant; and
  • damage to the plaintiff from the trespass.

Trespass is a possessory action.  In order to prevail on an action for damages, a plaintiff must prove possession, actual or constructive.  The ownership or possessory interest in land by the plaintiff must be proved.  Defendant’s invasion affects plaintiff’s exclusive possessory interest.  Moreover, it is the right of the owner in possession to exclusive possession that is protected by an action for trespass.  Actual possession requires the plaintiff to demonstrate his exclusive possession and control of the land.  Constructive possession requires proof that the plaintiff was the owner of the land and that no one else had possession[ii]

However, trespass does not require ownership, the right to possess is sufficient[iii].

The entry by the defendant to plaintiff’s land must be unauthorized.  The defendant should not have any right to enter into plaintiff’s land.

The essence of a trespass to real property is injury to the right of possession.  An unauthorized entry upon the land of another constitutes a trespass, without regard to the amount of force used.  Generally nominal damage is presumed from a trespass on land.  A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass.  The damage can be to the land, to his/ her things, to members of his/her household or to their things.  The damage can be caused by any act done, activity carried on, or condition created by the trespasser irrespective of whether his/her conduct would subject him/her to liability when s/ he is not a trespasser[iv].

When the actor knowingly and without authority enters the land of another, a trespass clearly occurs.  Intent can be to enter the real property; or to aid, assist, advice, or encourage another to enter.  However, the trespasser’s subjective intent or awareness of the property’s ownership is irrelevant.  In order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land[v].

An invasion to land is characterized as intentional torts regardless of the actor’s motivation.  Where there is a consensual entry, there is no tort.  Lack of consent is an essential element for tort.  Moreover, “a peaceable entry on land by consent is not actionable”[vi].

In trespass, courts need not look into the amount of force used for invasion.  The invasion must be physical and must be used in a tangible manner.  A trespasser is liable even when no damage is done or the injury is slight[vii].

[i] Keyzer v. Amerlink, Ltd., 173 N.C. App. 284, 289 (N.C. Ct. App. 2005).

[ii] Lin v. AMTRAK, 277 Conn. 1, 20 (Conn. 2006).

[iii] Special Force Ministries v. WCCO TV, 584 N.W.2d 789, 792 (Minn. Ct. App. 1998).

[iv] Restat 2d of Torts, § 162.

[v] City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87 (Conn. 2007).

[vi] Civic Western Corp. v. Zila Industries, Inc., 66 Cal. App. 3d 1, 16 (Cal. App. 2d Dist. 1977).

[vii] Kitterman v. Simrall, 924 S.W.2d 872, 878 (Mo. Ct. App. 1996).