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Trespass is a wrongful invasion of the possession of another[i].  It is an intentional or negligent intrusion upon or to the possessory interest in property of another.  Every unauthorized entry upon the land of another is a trespass, whether the owner suffers substantial injury or not.

In order to prevail on a cause of action for trespass, the plaintiff must establish[ii]:

  • an interference with a possessory interest in his/her property;
  • through the defendant’s physical act or force against that property;
  • which was executed without his/her consent.

However, the plaintiff need not demonstrate that the defendant’s intrusion was committed with tortious intent, but must establish that the defendant consciously intended to do the act that constitutes entry upon the plaintiff’s real or personal property.

A trespass action is an action at law[iii].  But a suit seeking damages for trespass is not a real action[iv].  It is a tort claim, which requires a showing of proximate cause[v].  In an action for trespass, title to the land is the pivotal issue[vi].  Also, a plaintiff who brings a trespass action bears the burden of proving his ownership.

For trespass to be actionable, the owner should at least sustain a legal injury, which entitles the owner to a verdict for some damages. Even though they may, under some circumstances, be so small as to be merely nominal[vii].

The gist of an action for trespass is violation of possession, not challenge to title[viii].  A plaintiff has the burden of proving that s/he was rightfully in possession as against a defendant at the time of the trespass.  To sustain an action for trespass, the plaintiff must have either be in actual physical possession or constructive possession, usually through holding legal title[ix].

Historically, a trespass was an intrusion or invasion into tangible property which interfered with the right of exclusive possession.  The general trespass statutes criminalize the entering and remaining upon premises when not licensed, invited, or privileged to enter or remain[x].

Trespass has both a narrow and a broad meaning[xi].  The narrow meaning refers to an unlawful entry upon the land of another.  The broad meaning of the term trespass encompasses any unlawful interference with one’s person, property, or rights.

In order that there may be a trespass, it is not necessary that the foreign matter should be thrown directly and immediately upon the other’s land[xii].  It is enough that an act is done with knowledge that it will to a substantial certainty result in entry of foreign matters.

For an indirect invasion to amount to an actionable trespass there must be an interference with plaintiff’s exclusive possessory interest; that is, through the defendant’s intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res[xiii].

The four elements which a plaintiff must prove in order to recover for an indirect trespass are[xiv]:

  • an invasion affecting an interest in the exclusive possession of his property;
  • an intentional doing of the act which results in the invasion;
  • reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest; and
  • substantial damages to the res.

Since the interference must be without the plaintiff’s consent, either expressed or implied consent constitutes a complete defense, so long as the scope of that consent is not exceeded[xv].  Similarly, one who holds property under a colorable claim of ownership is not subject to an action of trespass by the true owner[xvi].

The general measure of damages for trespass is the difference in the value of the plaintiff’s property immediately before and immediately after the trespass or the cost of restoration, whichever is less[xvii].  When there is total destruction of the value of the land, the plaintiff may recover the entire value of the land.

Similarly, the fact that plaintiffs use their property for a particular purpose is an element to be considered in determining damages[xviii].  If the before and after rule of damages applies, then, the value is not determined based on the best and highest use of the property, but on the owner’s desired or previous use.

Additionally, 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[xix].  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.  One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience.

Punitive damages may be awarded if the evidence shows the trespass was malicious, willful, intentional or reckless[xx].  For common law punitive damage claims, the evidence must meet the clear and convincing standard of proof.

Punitive damages are appropriate in a trespass action when the defendant acted in a manner which was outrageous, unfounded, unreasonable, and in conscious disregard of the plaintiff’s property rights[xxi].

For granting damages to an injured landowner where the trespasser is cloaked with the power of eminent domain, inverse condemnation, rather than trespass, is the appropriate theory[xxii].

On the other hand, a landowner is restricted to a trespass action where the landowner’s deprivation of use and enjoyment of property results from the negligent act of another party who acts without the authority or direction of the entity clothed with the power of eminent domain[xxiii].

A de facto taking is similar to a trespass in that both require a physical entry.  However, a trespass is temporary in nature, and a de facto taking is a permanent ouster of the owner, or a permanent interference with the owner’s physical use, possession, and enjoyment of the property by one having condemnation powers.  An entry cannot be both a trespass and a taking because, in the latter instance, the condemnor acquires ownership[xxiv].

[i] Singleton v. Haywood Elec. Mbrshp. Corp., 357 N.C. 623 (N.C. 2003).

[ii] Mitchell v. Baltimore Sun Co., 164 Md. App. 497 (Md. Ct. Spec. App. 2005).

[iii] MacWillie v. Southeast Alabama Gas Dist., 539 So. 2d 245, 248 (Ala. 1989).

[iv] Bennett v. Louisiana Pac. Corp., 693 So. 2d 1319 (La.App. 2 Cir. May 9, 1997).

[v] Sprayberry Crossing P’ship v. Phenix Supply Co., 274 Ga. App. 364 (Ga. Ct. App. 2005).

[vi] Bennett v. Louisiana Pac. Corp., 693 So. 2d 1319 (La.App. 2 Cir. May 9, 1997).

[vii] Bittner v. Huth, 162 Md. App. 745 (Md. Ct. Spec. App. 2005).

[viii] Jaycox v. E.M. Harris Bldg. Co., 754 S.W.2d 931 (Mo. Ct. App. 1988).

[ix] Belcher v. Greer, 181 W. Va. 196 (W. Va. 1989).

[x] State v. Olson, 47 Wn. App. 514 (Wash. Ct. App. 1987).

[xi] Fernandes v. Portwine, 56 P.3d 1, 6 (Alaska 2002).

[xii] Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala. 1979).

[xiii] Id.

[xiv] AmSouth Bank, N.A. v. Mobile, 500 So. 2d 1072 (Ala. 1986).

[xv] Mitchell v. Baltimore Sun Co., 164 Md. App. 497 (Md. Ct. Spec. App. 2005).

[xvi] Walter E. Wilhite Revocable Living Trust v. Northwest Yearly Meeting Pension Fund, 128 Idaho 539 (Idaho 1996).

[xvii] Hostler v. Green Park Dev. Co., 986 S.W.2d 500 (Mo. Ct. App. 1999).

[xviii] Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala. 1979).

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

[xx] Hostler v. Green Park Dev. Co., 986 S.W.2d 500 (Mo. Ct. App. 1999).

[xxi] Walter E. Wilhite Revocable Living Trust v. Northwest Yearly Meeting Pension Fund, 128 Idaho 539 (Idaho 1996).

[xxii] Clempner v. Southold, 154 A.D.2d 421 (N.Y. App. Div. 2d Dep’t 1989).

[xxiii] Wagner v. Borough of Rainsburg, 714 A.2d 1164 (Pa. Commw. Ct. 1998).

[xxiv] Feder v. Vill. of Monroe, 283 A.D.2d 548 (N.Y. App. Div. 2d Dep’t 2001).

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