Trespass to land has changed a lot over time. Land was a much bigger deal. Land equaled wealth, and a title was very important. A lot of the time, trespass resulted in claiming a title. Therefore, we need to have an understanding of how things changed over time.
Dougherty v. Stepp
Supreme Court of North Carolina, 1835. 18 N.C. 371.
Parties are not named, but the plaintiff lost in the trial court and then appealed.
Question
Did the trial court error in the instructions that were given to the jury?
Rule
Every unauthorized (unlawful) entry into the territory of another is trespass. This is true regardless of whether or not there is damage to the land.
Holding
Yes, this was trespass. Judgement reversed.
Facts
Defendant entered unenclosed land, surveyed and made a claim to part of it.
Analysis
Even if there is no damage to the property, if someone unauthorized accesses it, they have trespassed. The trespasser might not have known they were trespassing, believing the property to be theirs. Yet, they would still be trespassing and liable for damages. However, the damages are dependent on how much damage was caused.
Takeaways
No matter how small damage is caused, a plaintiff has the right to collect damages for trespass on land.
Additional Notes
When someone has property, they have an interest in protecting that land. So, even if the land was unenclosed, there was no markings, etc. a person can have claim to the property.
This is an intentional tort, meaning if someone accidentally falls onto a property (or shoved) there is no trespass.
Herrin v. Sutherland
Supreme Court of Montana, 1925. 74 Mont. 587, 241 P. 328.
Parties are not named but the defendant defaulted, judgement was made and he appealed.
Question
Does trespass of property occur if the offender is on another property and disturbing the peace? Does trespass extend into the air?
Rule
The air near to the soil is as if it were the soil itself. Trespass on that air is like trespassing on the land.
Holding
Judgement is affirmed
Facts
Defendant was duck hunting on one property and shooting shotgun shells onto the land of the plaintiff. The plaintiff filed suit for trespass, the defendant defaulted and a nominal judgement of $1 was made.
Analysis
Although one cannot argue with the passage of time that the air above the soil is the property of one indefinitely (because of advancing technology such as airplanes), we could argue that the air directly above the soil is as if it is the soil itself. Because the shotgun shells pass directly over the soil, have the potential to cause damage, and disturb the enjoyment of the property owner, the plaintiff has a claim to trespass.
Takeaways
Property owners can also have a claim on the air directly above the soil. Although this is not really practical, the only instance where this might be known is property shooting a firearm over property.
Additional Notes
The common law rule is that the property interest extends into the depth of the earth and into the sky. Over time, this has been hotly contested with the development of air travel and mining. We don’t look at it this way any more.
Rogers v. Board of Road Com’rs for Kent County
Supreme Court of Michigan. 1947. 319 Mich. 661, 30 N.W.2d 358.
Rogers is the plaintiff and Kent County is the defendant. Case was dismissed in trial court and the plaintiff appealed.
Question
Is failure to remove an object after permission has expired considered trespass?
Rule
A trespass has occurred if a party fails to remove an object after permission has expired.
Holding
There is a claim, motion to dismiss was wrong. Therefore, it is reversed and remanded for further trial.
Facts
Plaintiff and her husband had an agreement with the road commission. During the winter, the commission could place snow fences on the property of the plaintiff, as long as they were removed after the winter. The fences were placed, then removed after the winter. However, the fence anchors were not removed. One day, as the plaintiff’s husband was mowing, he hit an anchor which threw him off the machine resulting in his death. The plaintiff then filed suit for trespass.
Analysis
The case was originally dropped because the county said that this was negligence and therefore they were immune. The court here disagrees. They say that the license had expired, therefore the objects were to be removed. Citing the rule of the court, the county was trespassing. Therefore, there could be a claim for trespass and the trial court ruling to dismiss is overturned.
Takeaways
Leaving an object on another’s property (even if you had permission in the past) can constitute a trespass.
Additional Notes
Finally, you can trespass by overstaying your welcome. This principle is called “continuous trespass”.
Further, you can trespass even if the actions of the defendant is unforeseeable or negligent.
Disclaimer
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.
