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Trespass is the interference with a person’s right to possession of real property either by an unlawful act or by a lawful act performed in an unlawful manner[i].  The act must be intentional and the damages a direct consequence of the defendant’s act.

A claim of trespass requires[ii]:

  • possession of the property by plaintiff when the alleged trespass was committed,
  • an unauthorized entry by defendant, and
  • damage to plaintiff.

A trespass action may only be maintained by one entitled to possess that property.  Ownership alone is insufficient[iii].

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[iv].

Where real estate is involved, trespass is the unauthorized entry by a person upon the land of another, regardless of the degree of force used, even if no damage is done, or the injury is slight[v].

In order to maintain an action of trespass to real property, the plaintiff must be in either actual or constructive possession thereof, his/her declaration must allege title or possession.

Further, 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[vi].

In an action against a public utility alleging that defendant ran electric currents through power lines on property adjoining plaintiffs’ property and that those currents emitted high and unreasonably dangerous levels of electromagnetic radiation onto plaintiffs’ property, plaintiffs failed to state a cause of action for trespass[vii].

In San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893 (Cal. 1996), the court held that trespass may not be predicated on intangible intrusions such as noise, odors, light, or electromagnetic fields.

In an action for trespass to land the law presumes that a plaintiff has been damaged without the necessity of proof of actual damage[viii].  Additionally, if the trespass was inflicted with malice, aggravated or egregious fraud, oppression, or insult, punitive damages may be recovered without pleading or proof of special damages[ix].

The burden of proof is upon the plaintiff to establish by clear and convincing evidence that s/he is entitled to recover punitive or exemplary damages[x].  Nevertheless, statutory damages and punitive damages arising out of the same cause of action are not mutually exclusive[xi].  However, due to the penal nature of statutory damages, they should not be imposed if punitive damages are awarded.

Thus, if the trespass is found to be willful and malicious, the courts impose double damages and under some circumstances may impose treble damages[xii].  If the trespass is found to be casual and involuntary or under a mistake of fact, the courts generally impose double damages.

The damages to be doubled or trebled are those determined by the trier of fact to constitute just compensation within the overall limits of reasonableness, regardless the specific measure of damages used.

Ordinarily, an election of remedies between punitive damages and trebled damages, pursuant to statute, should be made before the case is submitted to the trier of fact[xiii].

Information that omits an essential element of the crime charged is defective and cannot serve as the basis of a conviction[xiv].  However, whether the initial entry is lawful is irrelevant to a trespass based upon a statute prohibiting the remaining upon the land after notice is given to depart, without regard to the lawfulness of the initial entry, and, thus, it was not necessary for the state to allege in the complaint that the defendant was wrongfully on the land.

In an action of trespass, when a defendant files only a general denial, it waives any affirmative defense and may not complain on appeal of insufficient evidence to prove lack of consent[xv].  Also, a defendant may assert that the entry was lawful or under legal right as an affirmative defense[xvi].

In jurisdictions requiring that a counterclaim arise out of similar cause of action or arising out of same state of facts as the plaintiff’s claim, one independent trespass cannot be used as a setoff against another trespass arising from the same circumstance[xvii].

[i] Annutto v. Herkimer, 56 Misc. 2d 186, 190 (N.Y. Sup. Ct. 1968).

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

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

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

[v] Rosenfeld v. Thoele, 28 S.W.3d 446 (Mo. Ct. App. 2000).

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

[vii] San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893 (Cal. 1996).

[viii] Rhodes v. Harwood, 273 Ore. 903 (Or. 1975).

[ix] Id.

[x] Apel v. Katz, 83 Ohio St. 3d 11, 20-21 (Ohio 1998).

[xi] Baker v. Ramirez, 190 Cal. App. 3d 1123 (Cal. App. 5th Dist. 1987).

[xii] Id.

[xiii] Johnson v. Jensen, 446 N.W.2d 664 (Minn. 1989).

[xiv] State v. Kreth, 150 Vt. 406 (Vt. 1988).

[xv] Stone Resources, Inc. v. Barnett, 661 S.W.2d 148 (Tex. App. Houston 1st Dist. 1983).

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

[xvii] Baitary v. Ilderton, 214 S.C. 357 (S.C. 1949).

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