Trespass to Land

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Trespass to land is defined as a person’s unlawful entry onto another’s land. There are five elements which the plaintiff must show for a valid suit.

1. There was a volitional act made by the defendant.
2. The Defendant acted with the intent of intruding on the plaintiff’s land.
3. There was an actual intrusion on the plaintiff’s land
4. The plaintiff was in possession, or was entitled to immediate possession, of the land when the intrusion took place.
5. The intrusion was caused by the defendant’s act.

For example:

1. Tiger, an avid golfer, goes down to the local course and begins to play. Tiger intends for his first shot to land on the fairway. Unfortunately, the shot doglegs and lands on Arnold’s property instead. Tiger is not liable because he did not intend for his shot to land on Arnold’s property.
2. Tiger intends to hit a golf ball onto Arnold's property. He misses and the ball lands on the fairway instead. He is not liable here because there was no actual intrusion on the Plaintiff's land.

It is important to remember that, for purposes of intent, the defendant does not have to know that the land he is intruding on belongs to someone else. All that is required is that he entered, or caused something else to enter, someone else’s land. Please also remember, intent does not have to be malicious. For example:

Tiger, an avid golfer, goes down to the local course and begins to play. He intends for his first shot to land on the fairway and the shot lands perfectly in the middle of the fairway. Unfortunately, and unbeknownst to Tiger, the land that the fairway is on does not belong to the golf course. It belongs to Arnold. Tiger will be liable here because he intended for the ball to land on Arnold’s property. It is true that Tiger did not know that the fairway was on Arnold’s property but, for purposes of intent, Tiger did intend to hit the ball onto Arnold’s property. Therefore, he is liable.

As you can see from this example, the intrusion onto the plaintiff’s land can be committed by personal entry onto the property, or it can be committed by causing some object (or another person) to enter the property. See Rogers v. Board of Road Commissioners, 30 N.W.2d 358 (Mich. 1948).

Additionally, if the defendant had permission to be on the plaintiff’s property and that permission expires or is revoked and he does not leave, or if he leaves something behind on the plaintiff’s property, he can be liable for trespass. For example:

1. Tiger invites Arnold to a party at his house. At the end of the evening Tiger asks Arnold to leave and Arnold refuses. Arnold is liable for the trespass since he failed to leave after his permission to be on the property was revoked.
2. To make his walk home shorter, Arnold cuts through Tiger’s back yard. While walking on Tiger’s property, Arnold drops a pack of cigarettes on Tiger’s lawn. Arnold will be liable for two trespasses, one for walking on Tiger’s land and another for leaving a pack of cigarettes on the property.
3. Tiger invites Arnold to a party at his house. During the party, Arnold sneaks into Tiger’s bedroom and leaves a recording device under Tiger’s bed. Arnold will be liable for trespass because he has left the recording device on Tiger’s property.

In addition to owning his land, a landowner owns a certain amount of the airspace above the land as well. The general measure of how high ownership of airspace extends is measured by aircraft flight altitudes. The modern view holds that landowners have no rights to the airspace above the minimal altitude required for normal aircraft flights. For example:

Jerry and Joe are playing catch with a football. Jerry and Joe each stand at opposite ends of Ronnie’s backyard and throw the football back and forth across Ronnie’s land. Both Jerry and Joe have committed an actionable trespass, even if they never set foot on Ronnie’s land, because they have invaded the airspace that Ronnie has actual possession of.

There is case law that has redefined the extent of a landowner’s ownership of the airspace above his property. This case law holds that a landowner’s rights only extend to the airspace that is within the "immediate reaches" of his property. Although this standard is undefined, suffice it to say that it is significantly lower than the minimum altitude required for normal aircraft flights. Furthermore, this view holds that an invasion of this airspace is not actionable as long as it does not interfere with the landowner’s “use and enjoyment” of his land. See United States v. Causby, 328 U.S. 256 (1946).

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