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3

Protecting the Right of Possession: Trespass to Land

INTRODUCTION

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.

THE ELEMENTS OF TRESPASS

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

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