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Property I
Villanova University School of Law
Aagaard, Todd S.

Elements of Trespass
Any intentional intrusion that deprives another of possession of land even if only temporarily, is considered a trespass.
Intentional trespass is a strict liability tort: there is no inquiry into the balance of interests between the P and D or whether the intrusion was reasonable.
Trespass does NOT need to cause harm to be actionable.
However, trespass to chattels will result in liability only if it causes harm to the owner or thing.
Punitive Damages for Trespass to land
General Barnard Rule: punitive damages are unavailable if only nominal compensatory damages are found.
McWilliams Exception: Barnard rule does not apply to Intentional Trespass to land
 Every person has a constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the right of another person. In intentional trespass to land the loss is defined as the loss of an individuals right to exclude others from his or her property.
Further, abolishing Barnard for Intentional trespass to land provides for confidence in the legal system to provide remedies for wrongs and thus people are less likely to resort to self-help.
Punitive Damages Award: Ratio of compensatory to punitive should not exceed nine-to-one.
Exception: However, a punitive award may exceed that ration when an egregious act results in only a small amount of damages.
Jacque v. Steenberg Homes, Inc. – Right to Exclude
Hinman v. Pacific Air Transport – Page 1 Course Outline
GENERAL RULE – Equity will not enjoin a mere trespass
EXCEPTION – Equity will interfere where:
The injury is irreparable, AND
Where full and adequate relief cannot be granted, AND
To prevent repetition of similar actions/multiplicity of suits AND
Destroys use and enjoyment of land.
That who seeks equity must do equity (Clean Hands Requirement)
Repeated Trespasses
Plaintiffs can get injunctions against repeated trespasses which, while not continuous, are part of a single course of conduct that seriously interferes w/ P’s right to the peaceful enjoyment of his property?
Case → Baker v. Howard County Hunt (iii)↑ – Dogs Rule in Course Outline
Continuous Trespass (Building Encroachments)
Arises when A builds a structure thinking it’s on A’s land, but a portion happens to be on B’s land, creating a continuing trespass through a building encroachment. Initial trespass is unintentional (becomes intentional once Ps know of it).
Restatement (Second) of torts – One is subject to liability to another for trespass if he intentionally fails to remove from the land a thing which he is under a duty to remove.
From this point on the continuing presence of the encroaching structure is an intentional trespass and thus falls into one of the exceptions that warrants an injunction.
Cases →
Pile v. Pedrick – awards automatic injunction against building encroachment
Golden Press v. Rylands – Applies 4 FACTOR BALANCING TEST: initial good faith (no negligence), minimal actual damage to P, expense of remedying trespass is very high for encroacher, and encroachment is small and fairly compensable. Will award injunction only if it would not cause encroacher grave hardship. If cost is too high to encroacher, will award P damages.
(BF = Mandatory Injunction)
·         Public Nuisance: Restatement (Second) of Torts§ 821B.
                        A public nuisance is an unreasonable interference with a right common to the general public.
                        Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
(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
(b) Whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(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
·         Restatement (Second) of Torts § 821C. Who Can Recover For Public Nuisance
(1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from 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
have the right to recover damages, as indicated in Subsection (1), or
have authority as a public official or public agency to represent the state or a political subdivision in the matter, or
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.
Private Nuisance – is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public that causes significant harm
Elements of Private and Public Nuisance:
One is subject to liability for a private nuisance if, but only if, his conducts is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either:
Intentional and unreasonable, (or)
An interference is intentional when the actor knows or should know that the conduct is causing and substantial and unreasonable interference. 
Substantial, not trivial, and
The unreasonableness of an intentional interference must determined by balancing the landowner’s interests.
An interference is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm. (Hendrick court balances each parties interests) (AND)
TEST 1: Net Social Utility
Social Harms
Social Utility
Social Value (what is being produced, investment – wouldn’t make investment if not worth that much, private profits, Jobs and workers, Taxes)
Suitability of D’s location.
Impracticality of D preventing harm (ties into suitability of location)
(Would be difficult to get an injunction under this test because social utility > social harm)
TEST 2: Bad Harm/Invasion
TEST 3: Harm is becoming worse
E.g. Non-profit organizations that generate nuisances (traffic, noise, etc.) would fail first two tests.
When the actor’s conduct is for the sole purpose of causing harm to another
OR contrary to common standards of deceny
Unintentional and negligent or reckless (or)
Abnormally dangerous condition or activities.
Some courts give weight to the temporal priority, in the sense that the first use to be established is given a presumption of validity relative to the later incompatible use. Early Bird gets the worm.
Whether harm to P’s land was direct (Trespass) or indirect (Nuisance).
Direct – it is enough that an act is done with the knowledge that it will to a substantial certainty result in the entry of the foreign matter.
Indirect – Intervening Force causing entry of foreign matter. (wind)
Whether the invasion was committed by tangible (Trespass) or intangible (Nuisance) substance. Tangible
 Does the object occupy the land in any meaningful sense or are they merely a part of the ambient circumstances of the space.
Policy: Trespass allows strong remedies, allowing intangible invasions to constitute Trespasses would have mass repercussions. Example Hinman.
Whether the intrusion deprives the P of possession (trespass) of land or just use/enjoyment (nuisance) of land.
Trespass does not require injury, while Nuisance requires proof of actual, substantial and unreasonable interference.
Nuisance Balances the disturbance against social utility of disturbances cause. Trespass does not.
Whether D’s action that created the intrusion was committed on or off P’s land.
Case → Hendricks v. Stalnaker
****NOTE: Aesthetic nuisance is extremely difficult to get a ruling against. However, to courts have been receptive graveyards, funeral homes and nudist colonies as nuisances. (Chuff Note – Adverse psychological effects here, rather than simply seeing something ugly?)
Nuisance Per Se
Two Ways of Establishing Nuisance Per Se
Prove that the Activity is a nuisance at all times, under all circumstances, and in any location. (Whenever and wherever it occurs)
Unreasonable Interpretation → That something is a nuisance 24/7 365 and everywhere.
Correct Interpretation → When this activity occurs, no matter where it occurs, it is a nuisance then it is a nuisance per se. NOT it must literally be a nuisance at all times even at night.
Prove that there is a Violation of law with additional evidence that there is a nuisance. Some JXs forbid particular activities because they define them as nuisances. (Do not have to wait until criminal charges are brought)
No statute making it illegal and classifying it as a nuisance. No Nuisance per se here.
This is the right question to ask. In this case, the race track was not illegal.
Luensmann v. Zimmer-Zampese and Associates → Drag Race
Location of the Nuisance and the Coming to the Nuisance Defense
Coming into the nuisance” defense.
Coming to the nuisance is

property w/o waste.
Ex Post → Remedy based on Fairness, Person didn’t cause any harm because no waste.
                         Case → Producers Lumber v. Olney Building Co.
                        ACQUISITION OF PROPERTY (Original)
                        First Possession – By Capture/Occupancy
                        First to possess something that is unclaimed by anyone else.
                        What does it mean to posses something?
                        What sort of resources are unclaimed?
                        WILD ANIMALS (Capture)
                        Rule of Capture:
                        Occupancy is required to “take” wild animal: must deprive animal of its natural liberty and bring animal within one’s certain control (not necessarily physical control)
                        Mortal wounding with continued pursuit.
                        Traps without wounding.
                        ** Mere pursuit is not enough **
                        Policy justification for rule of capture → designed to minimize disputes b/c unlikely that more than one person can claim such possession / capture.
                        Ratione Soli(LO) → Landowners are deemed to have constructive possession of wild animals who are on their property, as against a trespasser – even if that trespasser captured the animal
                        Because of importance of discouraging trespass to land
                        Justifies punitive damage award in Jacque, and overrides rule of capture
Case → Pierson v. Post
Custom, Economic Policy Considerations and the Rule of Capture → Translate custom into what should count as capture given the nature of the thing at stake and the industry’s dependence on this custom. (Economic Considerations, The activity would stop without this rule, doesn’t affect many people) Pg 5 of Course Outline
Case → Ghen v. Rich
Interference v. Competition → Deliberate, malicious interference with a persons, occupation, profession, or way of livelihood is actionable. Property right =   Competition with a persons livelihood is not and encourages markets.
Case → Keeble v. Hickeringill
First Possession or gaining abandoned property
In order to gain possession the property must be abandoned OR has never been acquired.
Property is abandoned when an owner manifests an intention to relinquish all future claims of possession or ownership. (Sometime circumstantial evidence is used to determine this)
A finder who takes possession of abandoned (or never acquired) property becomes the owner.
Need actual taking + intent to possess → certain degree of due diligence required in first possession claims, one must be diligently moving toward use, consumption or other exploitation of a resource before one can claim to be in possession.
Eads v. Braselton → Boat over wreck with a means to raise
Popov v. Hayashi → Pre-possessory Interest – Split Entitlement P.6
Open Access Commons, Anti-Commons Etc. P 6-7 Course Outline
Important departure from “First in Time” Rule. Used only someone is able to show better title to land than the AP
When an owner sits on her right to exclude and the SOL for challenging unlawful entry expires, original owner is barred from asserting right to exclude and a new title springs up in the adverse possessor.
SOL is generally longer for land than it is property.
Adverse possessor becomes the true owner and can exercise the right to exclude against the world, including the original owner. Applies to real and personal property.
Once you gain adverse possession, all prior trespasses not counted against you. Title goes back to time of entry.
Statute of Limitations starts when True Owner first had a cause of action for trespass or ejectment. New AP new SOL starting.