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Protecting the Right of Possession: Trespass to Land

Similarly, a mistake by the actor is treated the same way in analyzing intent for trespass as it is for battery or assault. An actor is liable for entry on property of another, even if she believes that she is on her own property, or some other property where she is entitled to be. Suppose that Ramone wanders back into the woods behind her house, believing she is still on her own land, but has actually drifted across the line into Wang’s woods. She is a trespasser, even though she doesn’t know it and didn’t “intend” to be. She did intend to walk where she walked, and her intentional walking caused an intrusion on the inviolable grounds of her neighbor. She may be morally innocent, but from the tort point of view she takes the risk of her imperfect understanding of the boundaries of her lot. Restatement (Second) of Torts §164.

Note, too, that damage to the property is not an element of trespass to land: Under §158, the unauthorized entrant is liable “irrespective of whether he thereby causes harm to any legally protected interest of the other.” This allows a court to award at least nominal damages for the intrusion, in order to vindicate an owner’s right to sole possession of her property. Historically, this provided a legal vehicle for determining possessory rights in land. Lord Snobbin could sue Jack Sprat for trespass based on the mere fact that Jack walked on the property, even though he hadn’t bent a blade of grass. The court would have to determine Snobbin’s title to the property in order to determine whether Jack was a trespasser, and a judgment for Snobbin for nominal damages would confirm his title. Historically the tort of trespass to land was probably used as much for this purpose-to prevent trespassers from acquiring easements or adverse possession rights[2]– as it was to remedy significant economic damages to the property.


Suppose that Paredes invites Marshall to his birthday party. At the appointed time Marshall shows up and knocks on the door, and Paredes declares her a trespasser. Under §158 of the Second Restatement, Marshall appears to be a trespasser: She has intentionally entered Paredes land, and nothing in the Second Restatement definition excuses an actor just because she had permission to enter. But of course consent to Marshall’s entry will defeat a claim for trespass. For simplicity’s sake, let’s think of it as a defense or privilege which, if established, defeats the right to recover, even though the prima facie elements – (1) intentional (2) entry (3) on the land of another – have been proved.

The Second Restatement tucked this point away near the end of its four-volume compendium of black letter tort principles:

§892A. Effect of Consent

(1) One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.

Under this principle, Paredes cannot sue Marshall for trespass to land if he consented to her entry. Consent is probably the most common defense to actions for trespass to land. Like the prima facie elements, however, it has its subtleties. For example, Paredes can consent to one intrusion on his property but not others. Although he invites Marshall to the birthday party, that does not mean she may use his property at will. Consent to entry on one occasion, or for one purpose, does not constitute a general consent to entry. If Marshall returns to fish in Paredes’s pond a week later, she will be a trespasser, if the reasonable understanding of the birthday invitation was that it limited entry to the party itself.

[2] [ft] Adverse possession, covered in the Property course, is a means of acquiring an interest in property by openly occupying it for a period of time.

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