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Protecting the Right of Possession: Trespass to Land


Protecting the Right of Possession: Trespass to Land


The tort of battery protects against unwelcome intrusions to the person, basically, touchings to the body. Assault protects against the anticipation of such intrusions. Trespass to land provides a legal remedy for intrusions upon one’s real property, that is, on land owned or occupied by the plaintiff. We all know what a trespasser is-someone who comes on another’s land without permission. As one of the casebooks suggests, “Trespassers tend to be thought of as fence-breaking, chicken-stealing no-accounts.”[1] But to sue for trespass, a plaintiff still must prove a set of carefully defined elements of the tort.


Even stating those elements turns out to be a bit complex. The Second Restatement of Torts defines trespass as follows:

§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

(a) enters land in the possession of the other, or causes a thing or a third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under a duty to remove.

Note some points about this definition. First, trespass is an intentional tort. In order to be a trespasser, the actor must act with a purpose to cause the intrusion on land, or with substantial certainty that she will cause it. Negligently causing entry on Astor’s land will not support a claim for trespass … though it may support a claim for negligence. So the analysis of intent in Chapter 1 applies to trespass as well as to assault and to battery.

Various corollaries of intent analysis will also apply, such as the doctrine of transferred intent. If Connors gets mad at Lugo and hurls a rock at him, intending to batter him, but misses, and the rock rolls onto Parvi’s land, Connor has committed trespass to land. He intended to cause a battery, but accomplished an unauthorized entry on the land of another, a trespass. He is liable for trespass under transferred intent.

[1] [ft] J. Henderson, R. Pearson, D. Kysar & J. Siliciano, The Torts Process 385 (7th ed. 2007).

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