Trespass

Question 1

Trespass Def.

Answer 1

-intentional interference with an owner’s right to exclusive possession; physical invasion of an owner’s possessory interest

a. Trespass law protects only those w/ a present possessory right. Not holders of easements or future interest or beneficiaries.
- Does not have to know your trespassing

Question 2

Trespass: Surface Intrusions

Answer 2

Anytime a person invades your property

a. Walking on grass
b. Backing up car
c. Insecticide on roses

• Tangible- IF smoke, chemical, water–Trespass liability is absolute
• Intangible- Falls under nuisance- Harm must be substantial and unreasonable.

-Reg. air flights over property not trespass, but special flights are.

Question 3

Trespass: Remedies

Answer 3

a. Nominal Damages→ available w/o proof of harm to property
b. Actual Damages(compensatory)→available to remedy actual harm to property resulting from trespass.
c. Punitive Damages→ If actions of trespasser are “sufficiently malicious, oppressive, or rude”. Means to deter trespass
d. Permanent Damages→ measured by diminution in the FMV of the land.
i. More likely to use injunction or removal unless special circumstances; must have acted in good faith
ii. Ex. House Encroachment: neighbor built house on your property so they will probably be forced to pay FMV and not knock down house.
e. Ejectment

Question 4

Defenses to Trespass

Answer 4

a. Legal Right (i.e. easement)
b. Legal Privilege (i.e. police, fire, emergency personnel)
c. Doctrine of necessity (criminal cases)0Still pay for damages
d. Mistake→ not a defense
e. Consent→license of entry. If you exceed the scope of your invitation or if consent is fraudulently obtained. Some license not revocable, estoppel
i. If person comes in fraudulently and no interference w/ your ownership or possession of land then no trespass

Question 5

Three types of Physical Invasions

Answer 5

1) Surface Intrusions are strict liability and include children, pets, harboring wild animals
2) Superadjacent–> bullets, sticks, overhangs (strict liability)
3) Subadjacent–> must show a physical invasion of underground materials or prohibited by state statute

Question 6

If I drill down and hit a pool that runs between both property?

Answer 6

Not a trespass

Question 7

If I store chemicals underground and they seep into your well?

Answer 7

Trespass