A trespass is committed when a person enters the premises of another without his/her consent[i]. Any person who commits trespass is called a trespasser. To constitute the offense of trespass, the entry into the property of another should be:
- without any right;
- illegal and unauthorized;
- with out any express or implied permission; or
- for the trespasser’s own purpose, pleasure or convenience.
Usually in an action for trespass it is the person who commits the offense who is made liable. Generally, trespassers can be classified into two:
- natural persons; and
When the trespass is committed by a natural person the person can be made liable for/as:
- continuing trespass[ii];
- co trespassers;
- joint tortfeasors;
- ratification of trespass;
- vicarious liability;
1. employer and employee[iii];
2. business entities and associated persons; and
3. principal and agent.
Usually the owner of the cattle is made liable in cases of trespass committed by any cattle. However, there are certain exceptions where the owner of the cattle is entitled to claim damages:
- Where there is a statutory, contractual, or prescriptive duty to erect a fence, and trespassing animals are injured upon entering the unfenced land;
- Where there is a defective fence which the land owner is bound to repair;
- When the land owner place in his/her land some dangerous instrumentalities.
In Heald v. Grier, (12 Mo. App. 556 (Mo. Ct. App. 1882)), a farmer brought an action against his neighbor to recover for the cost of cattle that were lost when the neighbor drove them off from his property. The cattle were grazing on the farmer’s property and strayed to the neighbor’s land. The neighbor forced them onto another person’s property, who drove them onto the highway, where some were lost. The court observed that a land-owner who would keep roving animals from straying upon his/her possessions must fence them out with a lawful fence. Failing in this, s/he can find no law which requires the animals to respect his/her invisible boundary lines. Hence, the court found that the neighbor had no right to consider the cattle as trespassers. Further, the court observed that the neighbor had the right to drive the cattle back to the farmer’s property, but not to drive them elsewhere to their harm. The court ruled in favor of the farmer and granted the cost.
[i] Lee v. Chicago Transit Authority, 205 Ill. App. 3d 163 (Ill. App. Ct. 1st Dist. 1990).
[ii] City of Shawnee V. At & T Corp., 910 F. Supp. 1546 (D. Kan. 1995).
[iii] Beach v. Milford Ice Co., 87 Conn. 528 (Conn. 1913).