The right to exclude refers to an individuals right to keep property for themselves and to restrict other’s use of that property. For instance, if A owns parcel of land, A has exclusive rights of which B is unable to enjoy. So, A can use the land, but B cannot. This right to exclusion is considered one of the greatest in our “bundle of sticks” of rights that property owners enjoy.

To protect this right, any incursion onto the land is guarded by the tort Trespass. A person trespasses as long as they intentionally enter the land (even if they had no ill intent).

The main privileges (exceptions) to this rule are if individuals have consent from the property owner or if they act out of necessity. The word privilege here works in this way: An individual is privileged to property access if they have consent or act out of necessity.

Jacque v. Steenberg Homes, Inc.

563 N.W.2d 154 (Wise. 1997).

The Jacques are the plaintiffs. They were awarded a jury verdict which was set aside by the judge. They lost on appeal before making this appeal.


Can punitive damages be called for when the only other damages are nominal, not compensatory?


The award of only nominal damages does not bar the use of punitive damages.


Punitive damages may be awarded, which will apply to this case. Reversed and Remanded.


The Jacques are an elderly couple who owned several acres of land (about 75). Due to their past, they were reluctant to allow anyone to enter their land without permission.

One of their neighbors purchased a mobile home which was set for delivery. Unfortunately, there was a lot of snow and tight corners that would make delivery of the home difficult. The company, Streemberg, asked for permission to cross the Jacque’s land but they were refused consent. Despite the lack of permission, Streemberg plowed a path across the land and delivered the home.

There was no damage to the land. So, in trial, the jury was unable to award compensatory damages. Instead, they awarded a $1 of nominal damages so they could attach $100,000 punitive damages. Streemberg argued saying that punitive damages could only be attached to compensatory damages.


The court finds a greater protection for trespass than other torts. For trespass, the government is in the system to protect the landowner’s exclusive rights to property. However, if the courts are not in a position to punish those for impeding on those rights, then there is no disincentive to restrain from entering land without permission.

To protect the rights of landowners, and to protect broader society interests, the court find that allowing punitive damages for no apparent harm is fine. Although there was no damage to the land, the harm comes from the intentional trespass.


The property rights of landowners is heavily protected, even more than other torts. Part of this is to incentivize the efficient use of the land (if anyone was allowed on, the landowners would have no desire to cultivate the land for private, efficient use).

Additional Notes

There are a few potential remedies that are provided to protect a property owner’s right to exclude:

  • Monetary damages – through harm caused.
  • Police – Fine the offenders and take them off the land.

However, sometimes people trespass without causing any harm to the property. What harm is felt in this situation that required a punitive remedy?

  • There is a threat of a loss of title
  • Worries about personal safety?

The court also mentions other reasons for providing a remedy:

  • The court wants to protect the economic interests of the individual and society (think utilitarian theory).
  • As for punitive damages, the court wants to deter others from impeding on the land of others.

What could Steenberg have done differently? For starters, they could have taken more time to establish a market approach. However, if this was unsuccessful, could they have forced the Jacques’ to accept a deal?

Finally, what are the reasons for these punitive damages?

  • First, to deter
  • Second, to punish
  • Third, to protect the property system.

State v. Shack

277 A.2d 369 (N.J. 1971).

Shack is the defendant who lost at trail and appeal before making this appeal to the New Jersey Supreme Court.


Under what circumstances are individuals allowed on private property without permission?


Courts are to balance the needs of the competing parties to determine what needs are legitimate and which are not.


Defendants did not invade the farmer’s right to property. They were not trespassers. The judgment is reversed.


At this period of time, farmers would employ several hundreds of individuals for the purpose of caring for the land during the harvest season. As part of the compensation, farmers provided housing for these individuals in camps. However, the housing conditions were horrible. These conditions, and several other factors, led to the legislature creating a law to protect the rights of these farm-workers. This legislation created funding for medical and legal aid to be provided.

The defendants work for non-profits who received some of the funding from this legislation. In the course of their duties, the attended one of the farms and attempted to enter into the housing facility. At that point they were met by the farmer who refused access to the facility, but that they could provide their aid in the presence of the farmer at his home. The defendants refused, who were then removed and charged for trespass.


The purpose of the trespass statute is to protect landowner’s exclusive right to property. However, this right is not absolute. There can be exceptions to the statute. One of these exceptions includes the fact that landowners are not allowed to use their property to infringe on the rights of other individuals, even though those individuals are on their land. So, the law protects the interest of all individuals, including those on the land of the landowner.

With this in mind, the court must evaluate the needs of all parties to determine what needs are legitimate and which are not:

  • Landowners have the right to the functions on their property
  • Individuals have the right to to access the property with consent
  • Individuals working/living on the property have the right to visitors (like a tenant in a lease).
  • Landowners have the right to restrict solicitors or peddlers.
  • Landowners have the right to request visitors to identify themselves and state their purpose.

Although landowners generally have the exclusive right, it is not absolute. There are times when individuals are allowed onto the property without the consent of the landowner.

Additional Notes

Our issue in this case is to determine whether the defendant’s had trespassed according to the state statute. The court held that the defendant’s did not trespass. But how far does the property owner’s right to exclude? The court strikes a balance, ensuring that the individual have their human values met but still allows the landowners certain rights as well.

Additional Notes

In the past we’ve seen some of the actions that the courts can make for violations of right to property. In the past we have focused on ejectment. Today, we use another cause of action to enforce property rights, tort law. The tort at issue in these cases are trespass.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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