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Protecting the Right of Possession: Trespass to Land

Similarly, consent may be limited in time. By inviting Marshall to the party, Paredes does not acquiesce to her staying for a week, even if she claims she is still celebrating. And, it may be limited to entry on certain areas of the owner’s property. A store owner who invites customers to visit his showroom does not consent to them coming upstairs to his apartment and watching TV.

It is clear, too, from the Restatement (Second) definition that a person may become a trespasser even though she entered the land with permission. If Marshall wanders off from the party and takes Paredes’s horse for a ride, she will become a trespasser, though she entered the land with permission. Or, if Clements, a college student, leaves her trunk full of textbooks at Kobe’s house for the summer, decides not to return to school, and never returns for the trunk, she becomes a trespasser by failing to remove the trunk at the end of the agreed time. The act of leaving the trunk-of not coming for it-is a trespassory act, although one might argue that it is no act at all.

Consent provides a defense not just to trespass to land, but to other intentional torts as well, such as battery or trespass to chattels. It is explored in more detail in Chapter 6.

Trespass Compared to Nuisance

I usually manage to get through my course in Torts without mentioning the word “nuisance.” I do this because the concept is, well, a nuisance, a complex and slippery concept. But it is hard to discuss trespass to land without comparing it to the complementary protection that nuisance law provides to landowners. Trespass is generally viewed as a tort remedy for actual physical intrusions on land-throwing stones on the property, driving a truck across it, or mining gravel on it. The action for private nuisance, by contrast, provides a remedy for interference with the use or enjoyment of land that is less tangible, such as operating machinery on adjacent land that causes continuous vibrations, excessive noise, or foul odors.

One definition of nuisance is “a condition or activity that interferes with the possessor’s use and enjoyment of her land by incorporeal or non-trespassory invasions to such an extent that the landowner cannot reasonably be expected to bear without compensation.”[3]  Such invasions do not usually amount to physical entry on the land, yet they may sufficiently interfere with the owner’s use and enjoyment of the property to support a claim for an injunction or for damages.

[3] [ft] D. Dobbs, The Law of Torts 1321 (footnotes omitted).

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