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Elements of Trespass

Trespass is an invasion in to another’s exclusive right to possession of property.  It is a direct unlawful interference with another’s property.

Generally, the main elements of trespass are:

  • an unlawful intrusion or invasion upon a property,
  • intent of intrusion,
  • force,and
  • consequent injury to an owner.

A trespass is said to be committed when one enters upon the land or property of another without the consent either express or implied, of the owner or occupier thereof[i].  A court has to decide whether a trespassers intrusion has violated a legally protected possessory interest of a plaintiff[ii].  There must be an affirmative act, or a misfeasance causing intrusion in order to constitute an act of trespass.  A person’s mere presence on a property without an act will not be subject to tort liability.

A trespass becomes intentional when the acts leading to the invasion were done with knowledge that a trespass would result.  It is not required that the acts were done for the specific purpose of causing a trespass or injury.  Usually, the age of a child will not protect him/her from liability if his/her act amounts to a trespass[iii].  However, an initial determination must be made whether a child trespasser formed the intent to do the physical act as trespass is an intentional tort.  While doing so, a child’s age, experience, and knowledge must be taken into consideration.

A landowner has to prove intent to trespass or cause harm by release of hazardous chemicals in order to claim damages for intentional trespass and nuisance[iv].  But, where a trespass results in damage, a trespasser is liable without reference to negligence or duty to due care.

A reasonable foreseeability that an act would intrude a plaintiff’s possessory interest may be considered an element of trespass.  A trespasser need not foresee the specific injury that may occur due to his/her act.  Intrusions such as noise or vibrations may constitute a trespass if they cause actual physical damage[v].

Force may be treated as an element when trespass is the immediate result of force originally applied by a trespasser.  It is not essential that a defendant act with a specific intention, if an injury is the immediate result of a force applied and damage occurred as a result.

A party is liable for trespass even though s/he acts under a mistaken belief of law or in good faith[vi].  A mistaken belief that s/he is committing no wrong, however reasonable will not exempt a trespasser from liability.  Thus, a person who believes a land is his/her own, or that s/he has consent of the owner, or legal privilege of entry, or although s/he is a child too young to be aware of the wrong will be treated a trespasser.  However, some jurisdictions protect individuals under the innocent trespasser rule who enter the land of another under a mistaken belief that it is permissible to do so[vii].  Under this rule, an unintentional entry onto another’s land does not automatically subject a person to trespass liability even though it causes harm to the possessor of the land.

Generally, an actual injury must have occurred to the property or rights of a person for a liability for trespass to be arise.  It may also require that an intrusion on land must be substantial and has resulted in harm.  However it has also been held that an unauthorized intrusion upon another’s land is considered an injury.  One who intentionally and without consent or other privilege enters another’s land is liable as a trespasser irrespective of whether harm is thereby caused to the other person’s legally protected interests[viii].

[i] Reasoner v. Chicago, R. I. & P. R. Co., 251 Iowa 506 (Iowa 1960).

[ii] Ream v. Keen, 112 Ore. App. 197 (Or. Ct. App. 1992).

[iii] Cleveland Park Club v. Perry, 165 A.2d 485 (Mun. Ct. App. D.C. 1960).

[iv] Cereghino v. Boeing Co., 826 F. Supp. 1243 (D. Or. 1993).

[v] Elton v. Anheuser-Busch Beverage Group, 50 Cal. App. 4th 1301 (Cal. App. 4th Dist. 1996).

[vi] Ansay v. Boecking–Berry Equipment Co., 450 F.2d 433 (10th Cir. Okla. 1971).

[vii] Santiago v. Cauley, 2005 U.S. Dist. LEXIS 34768 (S.D. Ga. Dec. 6, 2005).

[viii] Keesecker v. G. M. McKelvey Co., 64 Ohio App. 29 (Ohio Ct. App., Mahoning County 1940).

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