What You'll Learn

  • The prima facie case 4. Remaining and failure to remove
  • Possession and entry 5. Trespass versus nuisance
  • Mistake and damages

Educational information only; not legal advice. This article is a general study aid and should be checked against current authority and course materials.

1. Four Ways to Commit Trespass

Enter the land

The defendant personally crosses the boundary.

Cause entry

The defendant causes a third person or tangible object to enter.

Remain after privilege ends

A lawful visitor becomes a trespasser by staying after consent is revoked or expires.

Fail to remove a thing

The defendant leaves an object when under a duty to take it away.

Key Takeaway

Unauthorized entry to survey land supported trespass even without proof of physical damage. The protected interest was possession itself.

2. The Plaintiff Must Hold the Possessory Interest

The right to sue ordinarily belongs to the person with possession or the immediate right to possession. When land is leased, the tenant rather than the landlord may hold the possessory interest invaded by an entry.

3. Intent to Enter Is Enough

The defendant need not intend to trespass in the sense of knowing the land belongs to someone else. An intentional physical entry can satisfy the mental state even when the defendant acts under a reasonable mistake about a boundary, permission, or ownership.

Issue Rule of thumb

Mistake about ownership Usually not a defense to an intentional entry.

No physical damage Nominal damages may still vindicate possession.

Accidental entry Analyze negligence rather than intentional trespass if the entry itself was not intended.

Consent or privilege No liability within the scope and duration of the permission.

4. Continuing Trespass

Trespass can continue after an initially lawful entry. A person who remains after consent ends, or who fails to remove an object after a license expires, can be liable for the continuing invasion.

Key Takeaway

Leaving a post on land after the permission to keep it there expired supported a continuing-trespass theory.

5. Tangible Trespass Versus Intangible Interference

Claim Typical invasion Protected interest

Trespass to land Person or tangible thing enters, remains, or is not removed. Exclusive possession.

Private nuisance Smoke, odor, light, noise, vibration, or another non-trespassory interference. Use and enjoyment.

Airspace and subsurface intrusions require attention to whether the invasion interferes with the possessor's legally protected use or possessory rights. The outlines treat tangible entries differently from intangible disruptions.

6. Privileges and Remedies

Consent: protects entry only within the scope and duration granted. Private necessity: may privilege the entry but generally requires payment for actual property damage. Public necessity: can provide a broader privilege when action is taken to avert a public disaster. Emergency entry: entry to rescue a person or escape danger may be privileged depending on the circumstances.

Key Takeaway

A contractor receives permission to place equipment on land for one week. The contractor intentionally leaves a storage container there for two additional months. The original entry was privileged, but remaining after the license expired can create a continuing trespass.

Common Mistake

Do not require proof that the defendant knew the land belonged to the plaintiff. The key mental state is generally the intent to enter or remain.

Primary Authorities

  • Restatement (Second) of Torts: trespass to land provisions.

  • Dougherty v. Stepp (entry without damage).

  • Rogers v. Board of Road Commissioners for Kent County (continuing trespass).

Exam-ready conclusion

Trespass to land protects possession even without measurable damage. Identify the possessory plaintiff, the tangible invasion, the intent to enter or remain, and any privilege.