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Particular Acts or Omissions Constituting Trespass

Trespass is intrusion into another person’s property.  Trespass to land includes: walking onto land without permission, refusing to leave when permission has been withdrawn, or throwing objects onto land.

Trespass results from acts or omissions.  Acts amounting to trespass include:

  • a wrongful failure to leave another’s premises after s/he was asked to do[i]; and
  • a refusal to leave another’s premises after withdrawing previous permission[ii].

A lessee became a trespasser when s/he intentionally and without justification, continues in the premise with the knowledge that s/he had agreed to evacuate the property by a certain date.

When a person enters a public or common area, there is no intrusion or trespass.  The person is clothed with the implied consent of the owner or possessor of the property[iii].  It is nonsensical for a member of the public to seek out the expressed consent of the owner to enter an area already open to the public.  The implied consent can be shown from custom, usage or conduct.  The implied consent continues until the consent is revoked[iv].  Moreover, when a business, or public facility is involved and a portion is open to the public.  The portion is put open in belief that a person who enters an area open to the public at a reasonable time and in a reasonable manner.  There is an implied consent of the owner to enter the premises under a limited privilege.  The privilege based upon implied consent, is within the conditional or restricted consent of the owner to enter, the implied consent remains.  So long as there is no substantial evidence of the stay being prolonged, boisterous conduct, breach of the peace, blocking of entranceways, interference with the public, picketing, or other conduct which would revoke the implied consent of the owner by acts inconsistent with the purposes of the business or facility, there is no trespass.  A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with[v].

When the actor or a predecessor in interest has placed the structure with the landowner’s consent and failed to remove the same after consent is withdrawn or effectively terminated, a trespass is committed by the continued presence of a structure.  The landowner’s cause of action for trespass accrues and the statute of limitations period begins, when s/he retracts the permission for the use of the property[vi].

Failure to remove thing placed on land pursuant to license or other Privilege amounts to trespass.  The person who obtained prior permission must remove the structure after the privilege has been terminated, by the accomplishment of its purpose or otherwise[vii].  Moreover, initial presence of structure can be authorized, when done with owner’s consent.  A trespass occurs on failure to remove the structure after withdrawing the consent[viii].

Additionally, when a person erects a structure on another’s land a continuing trespass occurs.  A licensee’s failure to remove property after the expiration or revocation of the license results in a continuing trespass.  An action for damage caused to immovable property commences to run from the day the owner of the property had knowledge of the damage[ix].

Placing substance or objects on plaintiff’s property from outside boundaries without his/her consent amounts to trespass.  The substance or object need not be thrown directly to the plaintiff’s property.  Intention to intrude upon plaintiff’s property is enough to constitute physical invasion of property.  Until the substance is removed a continuing trespass exists[x].

[i] Johnson v. State, 172 Ga. App. 333, 334 (Ga. Ct. App. 1984).

[ii] Rager v. McCloskey, 305 N.Y. 75, 79 (N.Y. 1953).

[iii] Restatement (Second) Torts, §§ 167, 892.

[iv] Boling Concrete Constr. Co. v. Townsend, 686 S.W.2d 842, 843 (Mo. Ct. App. 1985).

[v] Restat 2d of Torts, § 168.

[vi] Merrill Stevens Dry Dock Co. v. G & J Invs. Corp., 506 So. 2d 30, 32 (Fla. Dist. Ct. App. 3d Dist. 1987).

[vii] Restat 2d of Torts, § 160.

[viii] Anchorage Yacht Haven, Inc. v. Robertson, 264 So. 2d 57, 61 (Fla. Dist. Ct. App. 4th Dist. 1972).

[ix] Labatut v. City of New Orleans, 686 So. 2d 1038, 1039-1040 (La.App. 4 Cir. Dec. 27, 1996).

[x] United Proteins v. Farmland Indus., 259 Kan. 725, 728 (Kan. 1996).

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