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A sign warning against trespassing.

Trespass (properly to go beyond, from Lat. trans, "across" + passus, "act of going from place to place"; French outrepasser is from Latin ultra = "beyond" + passus) is a legal concept, which refers to intrusion into another person's property. Trespass to land is a type of trespass, which can cause criminal[1] or a tort liability.[2] In England and Wales, while one can easily run into a notice warning that "trespassers will be prosecuted", it will only bring a civil liability, unless the trespass is aggravated.

There are also torts for trespass to chattels and trespass to the person. They are generally considered as an "intentional tort" but constitute a tort of negligence in Australia and other countries.

Occasionally (outside the law trade) "trespassing" is used to mean "agricultural encroachment" on a sacred or biological reserve area.

Contents

History

Trespass includes various types of torts committed to real property, personal property, or a person, distinguished generally by names drawn from the writs once used as appropriate to the particular transgression, such as vi et armis (with "force and arms"), quare clausum fregit de bonis asportatis, de uxore abducta cum bonis viri, and quare filium et heredem rapuit.

In England, the trespasser was regarded nominally as a criminal until 1694 and was liable to a fine for the breach of the peace, commuted for a small sum of money, for which 5 Will. and Mar. C. 12 (1693) substituted a fee of 6s. 8d. (a third of £1) recoverable as costs against the defendant. Trespass is not now criminal in England except by special statutory enactment, e.g. the old statutes against forcible entry, the game acts, and the private acts of many railway companies. When, however, trespass is carried sufficiently far it may become criminal, and be prosecuted as assault if to the person, as nuisance if to the land. At one time an important distinction was drawn between trespass general and trespass special or trespass on the case, for which see Tort. The difference between trespass and case was sometimes a very narrow one: the general rule was that where the injury was directly caused by the act of the defendant the proper remedy was trespass, where indirectly case. The difference is illustrated by the action for false imprisonment: if the defendant himself imprisoned the plaintiff the action was trespass; if a third person did so on the information of the defendant it was case. A close parallel is found in Roman law in the actio directa under the lex Aquilia for injury caused directly, the actio utilis for that caused indirectly. One of the reasons for the rapid extension of the action on the case, especially that form of it called assumpsit, was no doubt the fact that in the action on the case the defendant was not allowed to wage his law (see "legal wager").

In its more restricted sense trespass is generally used for entry on land without lawful authority by either a man, his servants or his cattle. To maintain an action for such trespass the plaintiff must have possession of the premises. The quantum of possession necessary to enable him to bring the action is often a question difficult to decide. In most instances the tenant can bring trespass, the reversioner only case. Remedies for trespass are either judicial or extra-judicial. The most minute invasion of private right is trespass, though the damages may be nominal if the injury was trivial. On the other hand, they may be exemplary if circumstances of aggravation were present. Pleading in the old action of trespass was of a very technical nature, but the old-fashioned terms alia enormia, replication de injuria, new assignment, etc, once of such frequent occurrence in the reports, are of merely historical interest since the introduction of a simpler system of pleading, unless in those American states where the old pleading has not been reformed. The venue in trespass was formerly local, in case transitory. In addition to damages for trespass, an injunction may be granted by the court. The principal instances of extra-judicial remedies are distress damage feasant of cattle trespassing, and removal of a trespasser without unnecessary violence, expressed in the terms of Latin pleading by molliter manus imposuit. Trespass may be justified by exercise of a legal right, as to serve the process of the law, or by invitation or license of the owner, or may be excused by accident or inevitable necessity, as deviation from a highway out of repair. Where a man abuses an authority given by the law, his wrongful act relates back to his entry, and he becomes a trespasser ab initio, that is, liable to be treated as a trespasser for the whole time of his being on the land. Mere breach of contract, such as refusal to pay for wine in a tavern which a person has lawfully entered, does not constitute him a trespasser ab initio. A trespass of a permanent nature is called a continuing trespass; such would be letting one's cattle to feed on another's land without authority.

In Scots law trespass is used only for torts to land. By the Trespass (Scotland) Act 1865 trespassers are liable on summary conviction to fine and imprisonment for encamping, lighting fires, &c., on land without the consent and permission of the owner.

Trespass law

A UK sign.

Although criminal and civil trespass laws vary from each jurisdiction, the following facets are common:

  • Property owners and their agents (for example, security guards) may only use reasonable force to protect their property. For example, setting booby traps on a property to hurt trespassers and shooting at trespassers are usually forbidden except in extreme circumstances. Several US states, however, preserve to varying degrees the Castle Doctrine, a concept from English common law allowing the use of deadly force against trespassers the break into the home, only. The US state of Texas in particular has especially broad guidelines for the acceptable use of deadly force.[1]
  • Not all persons seeking access to property are trespassers. The law recognizes the rights of persons given express permission to be on the property ("invitees") and persons who have a legal right to be on the property ("licensees") not to be treated as trespassers; for example, a meter reader on the property to read the meter. A police officer seeking to execute a warrant is a licensee. A surveyor studying the land for government use (usually map making). Someone such as a door-to-door salesman or missionary, would be a solicitor and not afforded the invitee exclusion to enter the private portion of the premises, and therefore be a trespasser. In a more recent case, Jehovah's Witnesses refused to get government permits to solicit door-to-door in Stratton, Ohio. In 2002, the case was heard in the U.S. Supreme Court. The Court ruled in favor of the Jehovah's Witnesses, holding that making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the first Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills.[3]
  • Most jurisdictions do not allow "self-help" to remove trespassers. The usual procedure is to ask the trespassing person to leave, then to call law enforcement officials if they do not. As long as the trespasser is not posing an immediate threat, they cannot be removed by force. It is usually illegal to arrest a trespasser and hold them on the property until law enforcement arrives as this defeats the purpose of allowing them to cure the trespass by leaving. This is excepted by US States that have Citizen arrest laws; CA being one. A large exception to this rule are railroads in the United States and Canada, who employ their own police forces to enforce state or provincial trespassing laws. Railroad police have the ability to independently arrest and prosecute trespassers without the approval or assistance of local law enforcement. Furthermore, in many jurisdictions, trespassing on railroad tracks is considered a very severe offense comparable to drunk driving, with severe fines imposed on the trespassers. Some jurisdictions even going so far as to impose fines higher than that of a drunk driving or marijuana possession conviction.
A sign warning against trespassing at Mater Dei High School in New Jersey
  • Most, though not all, jurisdictions allow "benevolent trespassing" for extreme situations. For example, if you have a car accident and somebody is injured, you may legally force entry into an empty building to call an ambulance. Similarly, if a structure is burning, one may forcibly enter to rescue a person trapped inside. The law assumes people will make a reasonable effort to notify property owners if possible.
  • Similarly, "Good Samaritan" laws take precedent over property laws where applicable. Civilians are afforded certain protection in emergencies - people cannot generally sue their would-be rescuers for breaking ribs attempting CPR, or damaging property while helping a person in need. Obviously, professionals (EMT, doctors, firefighters, etc.) are held to a higher standard, even when they're not "on the clock."
  • Marking property as private property can be done in a variety of ways. The most obvious way is to post a sign saying "No Trespassing" or "Private Property". However, a continuous fence has the same effect in most places. Many jurisdictions allow the use of markers when fencing would be impractical or expensive. For example, Ontario, Canada allows the use of red paint on landmarks such as trees to mark the boundaries of private property.
  • Property owners may allow some trespasses while excluding others. For example, a sign saying just "No Hunting" could conceivably allow hiking, snowmobiling or bird-watching, but would give notice to hunters that they would be trespassing if they entered onto the property.
  • Trespass is not limited to human beings. For example, the owner of cattle or dogs may be responsible for an animal's trespass in some jurisdictions. Furthermore, by causing an object to enter a property one can commit an act of trespass, whether it be earthworks, flood water, or objects thrown onto the property or allowed to travel onto the property.
  • Although trespass on private property is usually covered by a general provision, specific properties of high concern such as railways, motorways and military property are often covered under different legislation which carries greater penalties. e.g. in England and Wales, trespass is a civil offence, whereas "Trespassing on the Railway" is a criminal offence.

Several jurisdictions use the term defiant trespass for the offense of knowingly trespassing when there is appropriate notice or enclosure clearly intended to exclude intruders.

Other legal uses

  • Assault and battery are trespasses to the person and are actionable in tort as such.
  • The unlawful interference with the goods of another is a trespass against his goods and is actionable in tort, usually as conversion or detinue.
  • Actions for breach of contract was developed by the common law courts out of trespass and came to be called trespass on the case.
  • Unauthorized access to a computer system is sometimes considered a form of trespass. Generally in the U.S. these acts are not considered trespasses (see Intel Corp. v. Hamidi).

Wider uses

The term 'trespass' is also used for a transgression in general, such as in the Lord's Prayer as rendered in many traditional versions of the Book of Common Prayer.

Prevention

The front entrance of Whitwell Station, Reepham, UK, displaying some of the anti-trespassing techniques deployed.

There are many methods land owners use to prevent trespassing, usually depending on the terrain, risk, importance (personal, cultural or economic) and size of the property.

Some of the most common preventions are also the most basic, such as barbed wire, warning signs, and fencing. See also physical security.

See also

References

  1. ^ Dictionary of Real Estate law. Accessed May 28, 2008.
  2. ^ Inc.com article. Accessed May 28, 2008.
  3. ^ Watchtower Bible and Tract Society v. Village of Stratton – 536 U.S. 150 (2002)
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