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Rogers v. Board of Road Com’rs for Kent County

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Brief Fact Summary. Pursuant to a license, Defendant placed a snow fence and posts upon Plaintiff’s husband’s property with the understanding that it would be removed at the end of winter. Defendant did not remove the fence at the end of winter, and Plaintiff’s husband was killed by an accident involving the fence’s continued presence on his property. Plaintiff sued for trespass and negligence.

Synopsis of Rule of Law. When one consents to the presence of a structure or chattel on his property and that structure or chattel is not removed after the consent is revoked or terminated, he may recover for damages resulting from its continued presence.

Points of Law - Legal Principles in this Case for Law Students.

The Rogers Court stated: A trespass may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon (a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or (b) pursuant to a privilege conferred on the actor irrespective of the possessor's consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.

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Facts. Defendant obtained a license to place a snow fence upon Plaintiff’s husband’s property, but in so doing agreed to remove the fence after the winter months when it was necessary. Defendant failed to remove the fence after winter as agreed. When Plaintiff’s husband was later mowing the area, he was injured by a collision with the fence and ultimately died. Plaintiff sued for trespass and negligence. The Trial Court dismissed the action, finding that there was no basis for finding trespass. The Plaintiff appealed.

Issue. Was the Trial Court correct in dismissing the cause of action in trespass?

Held. No. The judgment was reversed and remanded. The license and agreement rendering the snow fence’s presence initially lawful did not bar an action for its presence after it should have been removed. Once consent or license to a structure or chattel’s presence upon one’s land is effectively terminated, the presence may revert to a trespass.

Discussion. This case demonstrates other possible dimensions of an intrusion upon another’s land. The Court recognizes that the fence was properly on the property in the first instance and was thus not originally a trespass. Had the injury occurred during the winter months, no damages could have been sought in trespass. However, due to the expiration of the license period, the fence’s continued presence ripened into a trespass, and the damages became recoverable.

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