Trespass to land

Trespass to land is a common law tort that is committed when an individual intentionally (or in Australia negligently) enters the land of another without lawful excuse. Trespass to land is "actionable per se". Thus, the party whose land is entered may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.

For trespass to be actionable, the tortfeasor must voluntarily go to a specific location, but need not be aware that he has entered the property of a particular person. If A forces B against his or her will onto C's land, C will not have action in trespass against B, because B's actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be jointly liable with B for B's trespass.

In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia, negligence may substitute the requirement for intent. Thus in that country, if a person trips and rolls upon the land of another, for want of due care, he or she would likely be found to have committed trespass.

If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a remedy, and may even forfeit certain property rights. "See Adverse possession" and Easement by prescription.

Trespass may also arise upon the easement of one person upon the land of another. For example, if A grants B a right to pass freely across A's land, then A would trespass upon B's easement by erecting a locked gate or otherwise blocking B's rightful access.

The maxim "cuius est solum, eius est usque ad coelum et ad infernos" (whoever owns the land owns it all the way to the heavens and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). The courts have been more lenient with underground trespass. The Kentucky Court of Appeal in Edwards v Sims 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reticent to do so in Di Napoli v New Beach Apartments (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.

There may be regulations that hold a trespasser to a higher duty of care, such as strict liability for timber trespass (removing trees beyond a permitted boundary), which is a type of trespass to chattels as a result of a trespass to land.

Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner's quiet enjoyment of his rights, there may be an action for nuisance, as where a disagreeable aroma or noise from A drifts across the land of B.

As with other intentional torts, the defences of necessity and consent are available for trespass to the person.

cotland

Under Scots law, trespass is not an offence.

ee also

*Trespass
*Right of way
*Adverse possession
*Public nuisance