The word “trespass” signifies “going beyond what is right.” Some trespasses are committed without force, and the remedy for such injuries is an action of trespass on the case. Other trespasses are accompanied with force, either actual or implied. If a trespass accompanied with actual force is injurious to the public, then the proper method of proceeding against the wrongdoer is by indictment or information. Whereas, if a trespass accompanied with actual force is only injurious to one or a few persons, then the wrongdoer can be proceeded against by indictment in some cases[i].
A common law tort in trespass upon real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another and damages directly ensue, even though such damages may be insignificant. The act of nonconsensual entry may be intentional or negligent. In other words, a trespass to property, whether negligent or intentional is considered as a common law tort.
Trespass provides remedy to a person or to property for all forcible, direct, and immediate injuries[ii]. However, to constitute either an indictable offense, there must be something more than a mere trespass; there must be some act that amounts to a breach of the peace[iii]. It is to be noted that certain types of physical invasions can constitute both trespass and nuisance. Moreover, conversion as a cause of action, is closely similar to an action.
If a person illegally seized another’s personal property and converted it to his/her own use, then the owner can bring trespass, trover, detinue or assumpsit. By bringing the action of assumpsit, the owner waives all claim for wrongful taking, detention and conversion.
Generally, assumpsit will not lie for a naked trespass on lands. It can be maintained only upon a contract, expressed or implied by law[iv]. However, if the wrongful act of trespassing on real property results in some benefit to the property or estate of the trespasser, then the law will imply a promise on his/her part to pay for the benefits received. However, assumpsit may be subject to certain qualifications and limitations.
A continuing trespass occurs when the trespasser remains on the land of the rightful owner while such land is in the possession of the rightful owner[v]. The threat of continuing trespass entitles a property owner to injunctive relief where it leads to irreparable injury. The usual remedy for a continuing trespass is a permanent injunction[vi].
It is to be noted that in some jurisdictions, in case of continuing intrusions by way of trespass, each repetition or continuance amounts to another wrong that leads to a new cause of action. Whereas, in some other jurisdictions, it is also stated that damages for a continuing trespass must be sought in one action and not in successive causes of action for continuing trespass. For example, North Carolina does not recognize successive causes of action for continuing trespass[vii].
[i] Fort Dearborn Lodge No. 214 V. Klein, 115 Ill. 177 (Ill. 1885).
[ii] Khanthavong v. Allstate Ins. Co., 1996 Conn. Super. LEXIS 3181 (Conn. Super. Ct. Dec. 3, 1996).
[iii] State v. Jacobs, 94 N.C. 950 (N.C. 1886).
[iv] Crow v. Boyd’s Adm’rs, 17 Ala. 51 (Ala. 1849).
[v] Russell v. Williams, 1998 OK CIV APP 135 (Okla. Civ. App. 1998).
[vi] Williams v. South & South Rentals, Inc., 82 N.C. App. 378 (N.C. Ct. App. 1986).