Practice and Procedure of Trespass Actions

A trespass action is an action at law[i].  An action for trespass does not accrue until the property owner has withdrawn his/her consent to the privileged use, and the statute of limitations does not run during the period of permitted use[ii].

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

Once an act of trespass has occurred, the statute of limitations begins to run[iv].  If there are multiple acts of trespass, then there are multiple causes of action, and the statute of limitations begins to run anew with each act.

A statute which establishes a limitations period in an action for trespass commences running at the occurrence of the first actual damages, where the trespass is a continuing one[v].

Proof of ownership or the right to possession of property is necessary for the maintenance of trespass and conversion actions[vi].  A complaint that adequately alleges a defendant’s intentional and unlawful interference with a plaintiff’s right to the possession of certain real property and resultant damages states a cause of action for trespass[vii].

A trespass action could only be maintained by one entitled to possess that property[viii].  Ownership alone was insufficient.  In an action for trespass, a defendant can prove under his/her general denial title in himself, no matter how acquired, whether by deed, inheritance or adverse possession[ix].

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[x].  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[xi].  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[xii].

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[xiii].  For common law punitive damage claims, the evidence must meet the clear and convincing standard of proof.

Under some jurisdictions, the criminal trespass to land statute provides that whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor[xiv].

Thus, a prosecution for criminal trespass in the third degree may be maintained against a person who knowingly enters or remains unlawfully in a building or upon real property[xv].

Under certain jurisdictions a person is guilty of criminal trespass in the first degree when[xvi]:

  • knowing that s/he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or
  • such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court.

Criminal trespass in the first degree is a class A misdemeanor.

The act of trespass and the claim of title in plaintiffs are put in issue under a general denial and therefore any title in the defendant, whether freehold or possessory, is admissible in evidence[xvii].

In a trespass action, the general rules of evidence apply.  Further, 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[xviii].  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.

In trespass actions, the burden of proof rests upon the plaintiff and the plaintiff must show by clear and convincing evidence and not by mere guessing or conjecture that the defendant was in some way liable[xix].

[i] Butler v. Lindsey, 293 S.C. 466 (S.C. Ct. App. 1987).

[ii] Merrill Stevens Dry Dock Co. v. G & J Invs. Corp., 506 So. 2d 30 (Fla. Dist. Ct. App. 3d Dist. 1987).

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

[iv] Breiggar Props. v. H.E. Davis & Sons, 2002 UT 53 (Utah 2002).

[v] Butler v. Lindsey, 293 S.C. 466 (S.C. Ct. App. 1987).

[vi] Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22 (Ark. Ct. App. 1999).

[vii] Ain v. Glazer, 257 A.D.2d 422, 423 (N.Y. App. Div. 1st Dep’t 1999).

[viii] Cornick v. Forever Wild Dev. Corp., 240 A.D.2d 980 (N.Y. App. Div. 3d Dep’t 1997).

[ix] Denham v. Cuddeback, 210 Ore. 485 (Or. 1957).

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

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

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

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

[xiv] People v. Mortenson, 178 Ill. App. 3d 871 (Ill. App. Ct. 2d Dist. 1989).

[xv] People v. Leonard, 62 N.Y.2d 404 (N.Y. 1984).

[xvi] State v. Drummy, 18 Conn. App. 303 (Conn. App. Ct. 1989).

[xvii] Denham v. Cuddeback, 210 Ore. 485, 487 (Or. 1957).

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

[xix] Johns v. Shaler, 240 Pa. Super. 129, 131 (Pa. Super. Ct. 1976).


Inside Practice and Procedure of Trespass Actions