Protecting the Right of Possession: Trespass to Land

Here are some distinctions between trespass and nuisance that will help you decide which of these remedies for interference with land is likely to apply:

• Trespass requires an unauthorized direct or immediate intrusion on the owner’s property, while nuisance typically involves interference with use and enjoyment over a period of time.
• Trespass usually involves the entry of a person or physical object, while nuisance usually involves more diffuse annoyances, such as smoke, noise, or vibrations. Typically, the nuisance defendant acts on nearby land, but the effects of her activity impact a nearby owner’s quiet enjoyment of hers, through some sensory interference. Nuisance “typically involves the indirect consequences to plaintiff’s land of something done entirely on defendant’s own premises.”[4]
• A trespasser is usually liable even for trivial physical intrusions, such as a single harmless amble across a neighbor’s lawn. Nuisance, by contrast, involves a weighing of the interest of the party creating the nuisance and the party who suffers from it. Sometimes, a court may conclude that some level of interference with the quiet enjoyment of adjoining property is reasonable, in view of the value of the activity that creates it, and therefore will not support recovery for nuisance.
• On the dividing line between nuisance and trespass lie cases in which invisible particles intrude on property. While there is no traditional interference with use and possession, as typically required for an action of trespass, some courts have allowed actions for trespass if the intrusion results in actual damage. See Rhodes v. E.I. Dupont de Nemours and Co., 657 F. Supp. 2d 751, 771-772 (S.D. W. Va. 2009). However, plaintiffs typically rely on nuisance actions in such claims for environmental injury. S. Ferrey, Environmental Law: Examples & Explanations 28 (5th ed. 2009).
• Trespass is an intentional tort. The actor must act with intent-either the purpose to cause the intrusion or with substantial certainty that it will cause the intrusion. An actor may create a nuisance, however, without intending to impact the property of another. The gravamen of the nuisance claim is the interference defendant’s activity causes to the plaintiff’s use of her property, not intent to cause that interference. Restatement (Second) of Torts §822(b). An actor might not know, for example, that the noise from his cement plant will reach owners’ property a half-mile away, but the noise can still constitute a nuisance to those owners.
• If a physical trespass is found that may recur, a court will grant an injunction against further trespasses. However, in nuisance cases courts balance the utility of the conduct against its interference with the adjacent owner’s rights. If a court finds that the defendant has created a nuisance, it may choose not to enjoin the conduct, due to its importance to the community. In such cases, the court will permit the defendant to continue his conduct, while granting damage compensation to surrounding owners affected by the activity.

The following examples should help you understand the elements and the limits of the claim for trespass to land.