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University of Illinois School of Law
Williams, Cynthia


·         An actionable invasion of an interest in exclusive possession of land
·         Protects a plaintiff’s interest in the surface land itself, the earth or other material beneath the surface and the air space above it

Restatement (Second) § 158
·         One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
o   a. enter land in the possession of the other, or causes a thing or a third person to do so, or
o   b. remains on the land or
o   c. fails to remove from he land a thing which he is under a duty to remove

The Requirement of Intent
·         Trespass is an intentional tort and the plaintiff must prove that an alleged trespasser had the requisite mental state to commit the tort
o   Restatement (Second) § 8A: the actor desires to cause the consequences are substantially certain to result from it
·         Consistent with the “substantial certainty” approach to intent in general, an actors awareness of the high degree of likelihood that a trespass will result from is activities may be proved circumstantially
·         Plaintiffs must prove only that defendants intended the act that resulted in the trespass
o   The defendant’s act was volitional and done ether with a desire to cause a physical entry onto plaintiffs property or with substantial certainty that the act would result in such a physical entry

Summary of trespass
·         1. The interest sought to be protected by trespass action for intentional entries is the plaintiff’s interest in the exclusive possession of land
·         2. To constitute a trespass, the defendant must accomplish an entry on the plaintiff’s land means of some physical tangible agency. The entry must be unauthorized and
o   a. intended by the defendant
o   b. caused by defendant’s reckless or negligence or
o   c. the result of defendant’s carrying on an ultrahazadorus activity
·         3. The circumstances in which a defendant may be privileged to commit an unauthorized, intentional entry are carefully limited by judicial decisions and there exists no broadly based privilege deliberately to enter the land of another simply because on balance the social benefit of doing so appears to outweigh the risks of harm to the land
·         4. Once the defendants is found to have committed an intentional trespass, in the absence of circumstances giving rise to a privilege, the plaintiff is entitled to at least nominal damages and to injunctive relief if further acts by the defendants threaten similar entries upon his land   


·         Two distinct categories: unreasonable interference (general public or private use and enjoyment of land)
o   Public nuisance: action interferes with public health or safety
·         Restatement (Second) of Torts § 821B: an unreasonable interference with a right common to the general public
o   Private nuisance: action interferes with another’s current possessory or beneficial interest in the use or quiet enjoyment of land
·         Restatement (Second) of Torts § 821D: a nontrespassory invasion of another’s interest in the private use and enjoyment of land

Public Nuisance § 821B
·         1. A public nuisance is an unreasonable interference with a right common to the general public
·         2. Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following
o   a. whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience or
o   b. whether the conduct is proscribed by a statute, ordinance or administrative regulation or
o   c. whether the conduct is of a continuing nature or has produced a permanent or long lasting effect and as the actor knows or has reason to know, has a significant effect upon the public right

Who can recover for public nuisance § 821C
·         1. In order to recover damages in an individual action for public nuisance, one must have sufficient harm of a kind different that suffered by other members of the public exercising the right common to the general public that was the subject of interference
·         2. In order to maintain a proceeding to enjoin to abate a public nuisance, one must
o   a. have the right to recover damages an indicated in subsection (1) or
o   b. have authority as a public official or public agency to represent the state or a political subdivision in the matter or
o   c. have standing to sue as a representative of the general public as a citizen in a citizen’s action or as a member of a class in a class action

Public Nuisance
·         In recent years, state and local officials have turned to public nuisance doctrine in an effort to address a variety of complex and pervasive social harms: “regulation by litigation”
·         To maintain a private action for public nuisance, the individual plaintiff must suffer harm that is different in kind from that suffered by the public at large: subsection 1 of 821C
o   Special Injury Rule

Private Nuisance
·         Trespass distinguished
o   The basic difference may be expressed in terms of the different interests protected.
o   A successful action in trespass serves to protect the plaintiff’s interest in the exclusive possession of land; an action in private nuisance protects the plaintiff’s interest in the use and enjoyment of land. Trespass requires a physical entry; private nuisance does not
·         In addition to invading the plaintiff’s interest in the private use and enjoyment of land and causing substantial harm in the process, the invasion must be wrongful: 822

Private Nuisance § 821D
·         A nontrespassory invasion of another’s interest in the private use and enjoyment of land

General Rule § 822
·         One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private nuisance use and enjoyment of land, and the invasion is either
o   a. intentional and unreaso

l encroachment
§  Laches: slept on your rights
§  Estoppel: you know you are encroaching but its okay
§  Really minimal encroachment compared to the injunction (economic waste)

Adams v. Cleveland-Cliffs Iron Co: it is also about the interest that is being invaded (trespass: right to exclusion, nuisance: right to quite, use and enjoyment of land)
·         Facts
o   Cleveland-Cliffs Iron Co. (Cleveland-Cliffs) (defendant) owned the Empire Mine, one of the largest iron mines in the country. Empire Mine operated 24 hours a day and produced 8 million tons of iron ore annually.
o   In doing so, the mine emitted vibrations, noise, odors and dust.
o   Adams (plaintiff) brought suit against Cleveland-Cliffs for trespass and nuisance based on the noise, odors, and settling dust that was about four-times thicker than ordinary dust which devalued their homes. The plaintiffs testified that the noise and vibrations from the blasts caused them to suffer shock, nervousness, and sleeplessness.
·         Issue: trespass or nuisance. How tangible does something need to be in order to be trespass?
·         Holding
o   Recovery for trespass to land in Michigan is available upon proof of an unauthorized direct or indirect or immediate intrusion of a physical, tangible object onto the land over which the plaintiff has a right of exclusive possession: did not happen here because dust, odor and noise is not tangible
o   Where the possessor of land is menaced by noise, vibrations or dust, smoke, soot or fumes the possessory interest implicated is that of use and enjoyment, not exclusion and the vehicle through which a plaintiff normally should seek a remedy is the doctrine of nuisance
·         In this case the result is because Mich does not recognize dust and noise as a trespass they are going to remand the case for the nuisance claims. They are not tangible objects so they cannot give rise to an action of trespass. Dust along with other forms of airborne particles does not normally present itself as a significant physical intrusion. (Good for future thinking and planning, clear, bright line rule. It blurs the line between trespass and nuisance)
o   Nuisance claim could help the defendant because of the balancing test to show that the economic benefit to the community outweighs the harm to the people
o   If the plaintiff wins they will get damages and we wont give them an injunction and shut down the mine. In trespass the traditional remedy was injunction and not damages