Trespass to Land

Question 1

What are the elements to trespass to land?

Answer 1

1. The land is in the Plaintiff’s possession 2. Defendant intentionally 3. Himself enters the land 4. Or causes a thing or third person to do so 5. Or remains on the land after his privilege to be there has expired 6. Or failsto remove from the land a thing which he is under a duty to remove.

Question 2

When is Plaintiff in possession of the land?

Answer 2

1. Plaintiff occupies the land with the intent to control it 2. If no one else is in possession, Plaintiff was the last occupier 3. Plaintiff has the right to immediate occupancy.

Question 3

What intent is required?

Answer 3

1. Mere entry upon the land 2. Cause the entry 3. Or remain on the land.

Question 4

Does defendant have a defense if he had a good faith belief or a reasonable mistake concerning title to trespass?

Answer 4

No

Question 5

Does it matter if the trespass was directly or indirectly?

Answer 5

No

Question 6

What are the vertical boundaries of the land?

Answer 6

Above and below the surface of the land.

Question 7

What are the four theories concerning how much airspace Plaintiff owns over his land?

Answer 7

1. Zone theory- (effective possession) only the altitude P might use in the future.
2. Actual Use Theory- P owns only the airspace he is actually using.
3. Privilege Theory- P P has unlimited ownership of the airspace subject to a privilege of flight.
4. Nuisance Theory- P has an action in nuisance (negligence) only if flights interfere with his use and enjoyment of the land.

Question 8

What does the Restatement 2nd say on trespass to land by air?

Answer 8

Trespass is when 1. Over flights enters into the “immediate reaches “ of the airspace next to the land and 2. Interferes “substantially” with Plaintiff’s use and enjoyment.

Question 9

What is the Supreme Clause of the Federal Aviation Law?

Answer 9

It may make flights privilege which would otherwise be a trespass.

Question 10

What may cause a nuisance trespass?

Answer 10

When dust, smoke and other particles are released by D knowing that they will invade Plaintiff’s land.

Question 11

What damages may Plaintiff Plaintiff recover for trespass to land?

Answer 11

All harm to property, persons or things and a broad range of consequential damage.

Question 12

Does an action for trespass to land fail if Plaintiff has no actual harm?

Answer 12

No, the trespass is the tort?