Torts 1.3 – Trespass
I. Two Main Intentional Torts
- Battery: Previous lesson.
- Trespass: This lesson.
II. Trespass: The intentional entry onto the land of another without consent.
A. Element #1: “Intentional”
- Trespass is a single intent tort. You must intend “to enter,” but you do not need to intend “to enter onto the land of another.”
- Example: I build a shed behind my house, thinking it’s on my side of the property line, and it turns out to be on your side of the property line.
B. Element #2: “Entry”
- Example: Walking across someone else’s property.
- Example: Hunter lets his dogs run onto neighbor’s land, knowing that his dogs would enter the neighbor’s land, because they had done so repeatedly in the past. Even if the hunter, himself, does not cross over onto the neighbor’s land, he is still considered to have entered because his dogs (an appendage of him) did. (Pegg v. Gray)
- Non-Example: If patrons at a golf club repeatedly hit balls onto a neighbor’s property, this does not count as entering because the golfers did not know that their golf balls would go there, and they did not intend for their golf balls to go there. (Malouf v. Dallas Athletic Club)
C. Element #3: “Land of Another”
i. Common Law Rule: “Ad coelum, ad inferos”
- Meaning “Whosever is the soil, it’s theirs all the way to heaven and all the way to hell.”
a. “Ad inferos” (all the way to hell)
- Whatever is in the direct line between the surface of the land and the center of the Earth belongs to the owner of the surface.
- So, if someone else digs a tunnel under your land, that is trespass.
b. “Ad coelum” (all the way to heaven)
- Congress has established a government right to all airspace above 500 feet. So airplanes flying more than 500 feet above the soil are not trespassing on the property beneath them.
- The airspace beneath 500 feet above one’s land, however, remains in controversy. (e.g., If someone flies a drone over your land, have they trespassed? It is unclear. Courts are still figuring this out.)
D. Element #4: “Consent”
Consent under a misimpression still equals consent.
- Example: Reporters pretended to be patients to expose insurance fraud at a clinic. However, the court held that failure to identify themselves as reporters did not count as fraudulent entry, so they had not committed a trespass. (Desnick v. ABC)
- If a person pretends to be your friend, but really just wants a dinner invitation, they have really just obtained your consent under a misimpression (rather than consent procured by fraud). As such, they did, in fact, still have your actual consent, so they have not committed trespass.
Consent procured by fraud does not equal consent.
- Example: If a person pretends to be a meter reader, but really just wants to get inside your basement, this is fraudulent entry. This means that they did not actually have your consent, so they have committed trespass.
III. Privileged Trespass
- A trespass may sometimes be allowed (in other words, “privileged"), such as in cases of necessity or emergency.
A. Private Necessity
- In cases of an emergency to you or your property, you are allowed to trespass onto the property of another, and you are not liable for the trespass itself. However, you must pay for any damages that you cause to the other person’s property.
i. Example of Private Necessity:
- If I run onto your property while trying to escape a vicious dog, my trespass will be privileged, and I will not be held liable for it.
ii. Non-Example of Private Necessity:
- If someone experiencing homelessness squats on your vacant lot, that is trespass. Generally, this is not considered to be a situation of private necessity (and thus, not privileged, meaning that the defendant could be held liable for it). However, as noted in Property Lesson 2.2, the Magadini decision suggests a move towards considering the possibility of allowing a necessity defense in some circumstances.
iii. Example of Private Necessity and Liability for Damage
- If I moor my boat to your dock in order to avoid sinking at sea during a storm, that is “privileged” trespass, and I will not be held liable for it. However, if my boat does damage to your dock, then I will owe you money to compensate for that damage.
B. Public Necessity
- In cases of an emergency, you are allowed to trespass onto the property of another in order to protect a broader group of people, and you are not liable for the trespass itself. Unlike private necessity, in cases of public necessity, you do not have to pay for damages that you cause to the other person’s property.
i. Example of Public Necessity with No Liability for Damage Caused
- The mayor of San Francisco knocked down someone’s house in order to create a fire wall during a fire in San Francisco. The mayor was not liable for the damages that he brought upon that person’s property when he trespassed upon it in order to protect the people of the city from the fire.
Second Main Intentional Tort: Trespass
In the last session, we talked about one of the two main (00:02) intentional torts —battery. Battery is the intentional touching of the person of another, causing harm or offense, without consent. Today, we’re going to talk about the other major intentional tort, which is (00:14) Trespass. Trespass is the (00:16) intentional entry onto (00:18) the land of another (00:18) without consent. And just as in battery, we’re going to unpack each of those terms in order to understand what the tort of trespass is.
Element #1: “Intentional”
So, the tort of trespass is an intentional tort. If you stuff me into a (03:24) duffel bag and throw me onto a neighbor’s lawn, [I did not commit] trespass because I didn’t (00:35) intend to enter onto my neighbor’s property. But if I build a shed behind my house thinking it’s on my side of the property line, and it turns out to be yours, that is trespass.
Trespass Is a Single Intent Tort
Trespass is, in this sense, a (00:48) single intent tort. I need to (00:50) intend to enter, but I don’t need to (00:52) intend to enter onto the land of another. Even if I think that it’s my land, as long as I intentionally went there, it’s trespass.
Element #2: “Entry”
What does it mean to “enter”? Well, the paradigmatic trespass is walking across your property. Very little that is unclear there. But sometimes it won’t be my body going onto your property. What if, say, I’m a hunter, and I use dogs to hunt and my dogs run onto your property (not me, but my dogs)?
Example of “Entry”: Pegg v. Gray
There’s a famous case, (01:21) Pegg v. Gray, that says that counts as entry, too, at least as long as the hunter repeatedly let his dogs enter onto his neighbor’s land, so, he knew that this would happen when he went hunting. The dogs became an (01:35) appendage to him.
Non-Example of “Entry”: Malouf v. Dallas Athletic Club
But not every time I cause an object to enter onto your property will that be trespass. There’s another famous case, (01:43) Malouf v. Dallas Athletic Club, where patrons at a golf club repeatedly hit golf balls onto one of the neighbor’s property, and the court holds there that that doesn’t count as entering. They didn’t know that their golf balls would go there. They didn’t (01:58) intend for their golf balls to go there. Obviously, there’ll be a big gray area here in defining what is, and what isn’t, intentional entry. And we saw gray areas like that in battery, too, and we will see that throughout the Torts curriculum.
Element #3: “The Land of Another”
So, that’s what “intentional entry” is. What’s (02:16) “the land of another”? Well, the land of another is clearly the lawn outside my house. But how far up and how far down does my land go? The common law rule was (02:27) "ad coelum, ad inferos"—whosever is the soil, it’s theirs all the way to heaven, and all the way to hell.
And so, if I dig tunnels underneath your land, that’s trespass. The common law courts said that whatever is in a direct line between the surface of the land and the center of the Earth belongs to the owner of the surface.
There’s been a lot of controversy about the (02:50) "ad coelum" part. How high up does your property right go? And in some early cases after the advent of airplanes, landowners successfully brought trespass claims against airlines for flying overhead. Ultimately, Congress stepped in and established a government right to all (03:09) airspace above 500 feet. But (03:11) below 500 feet, there remains a lot of controversy. There’s particularly an ongoing controversy about drones right now. When Amazon flies a drone above your property, is that trespass? And the answer is we don’t really know. And courts are figuring it out. So, again, trespass is the intentional entry onto the land of another without consent.
Element #4: “Consent”
What do we mean by (03:34) “consent”? Consent is an element that we saw in battery, as well. The typical rule is that consent procured by fraud doesn’t equal consent. But deciding what is (03:45) consent procured by fraud, and just what is (03:47) consent under a misimpression, is going to be difficult.
Example of Consent by Fraud: Desnick v. ABC
There’s a famous case, (03:52) Desnick v. ABC, where reporters for ABC PrimeTime Live pretended to be patients and filmed an exposé about Medicare fraud at a cataract clinic. And the doctor who owned the cataract clinic sued. And he said, “I wouldn’t have let you onto my property if I knew that you were ABC reporters.” The court ultimately decided that it wasn’t trespass—that the reporters’ failure to identify themselves as reporters didn’t count as fraudulent entry.
The Difference Between “Consent Procured by Fraud” and “Consent Under a Misimpression”
But in the context of that opinion, the court runs through a number of helpful examples. So, the court says if a person pretends to be a meter reader, but really just wants to get inside your basement, that’s trespass. On the other hand, if a person pretends to be your friend, but really just wants a dinner invitation, that’s not trespass.
The distinction between consent procured by fraud and consent procured by misimpression is difficult to draw.
So, where’s the line between pretending to be a meter reader so I can see inside your house, and pretending to be a friend so I can see inside your house? Well, there is no bright line. But we see courts searching for practical standards that they can apply sensibly.
Privileged Trespass in Cases of Necessity or Emergency
So, trespass, again, is the intentional entry onto the land of another without consent. There are a number of cases in which the defendant acknowledges that she’s committed a trespass but says that the trespass was (05:09) "privileged." Yes, I trespassed, but I was allowed to.
Examples and Non-Example of Privileged Trespass
And the privilege cases are primarily cases about (05:16) necessity or (05:17) emergency. So, if I’m (05:19) running to escape a vicious dog, and I run onto your property, that’s not going to lead to liability for trespass. I will say, “Yes, I trespassed onto your land, but I was privileged to do so.” In a storm, if I try to moor my boat to your dock and if I otherwise remained at sea my boat would sink, that’s not trespass. If I’m homeless and I squat in your vacant lot, that is trespass.
The line between necessity and trespass is difficult to draw.
So, figuring out where necessity ends and trespass begins is often going to be difficult. The homeless person is, in one sense, escaping an economic storm and comes onto your property. We say that is trespass. But the ship captain who escapes an actual storm and moors himself to your dock—that’s not going to be liable trespass. We’ll say it’s trespass, but it’s privileged.
There’s another important distinction in trespass law between (06:45) private necessity and (06:14) public necessity. So, most of the cases that I just described were (06:18) private necessity privileged trespasses. And when it’s a private necessity, i.e., an emergency to me or to my property, I’m allowed to trespass onto your property. But if I cause (06:30) damages, then I have to pay for them. So, if I moor my boat to your dock in a storm, and my boat does damage to your dock, then I owe you money for that. I was allowed to moor my boat to your dock, but I still have to compensate you for the damage that I cause.
There’s another category of cases—public necessity cases. So here, it’s an emergency, but I’m not acting for myself. I’m acting for a (06:57) broader group of people. And, on behalf of that broader group of people, I enter upon your land. In public necessity cases, the privileged trespasser (07:07) doesn’t have to pay damages for injury that she causes to the plaintiff’s property.
Example of Public Necessity: Surocco v. Geary
So, a famous case about public necessity is (07:16) Surocco v. Geary. Geary was the mayor of San Francisco. And he knocked down Surocco’s house in order to create a fire wall during a fire in San Francisco. The first question was: had he trespassed? And the answer was: well, he was (07:33) privileged by (07:31) necessity to go onto Surocco’s land. But the court also said because it’s (07:36) public necessity, he doesn’t have to pay. Because he was acting on behalf of the city, and not just on behalf of himself, he didn’t have to pay for the damages to Surocco’s property.
Summary of Trespass and Privileged Entry for Private or Public Necessity
So, to recap, trespass is the intentional entry onto the land of another without consent. A (07:53) privileged trespass doesn’t lead to liability, except for (07:56) damages that the privileged trespasser causes. And the privileged trespasser is only going to have to pay damages if their trespass was for (08:06) private necessity, and not if it was for (08:08) public necessity.
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