Tort remedy for the physical invasion of real property.
Involves right to exclude
Described as most basic entitlement in the bundle of property rights.
This right is clearly violated when a person enters another's land without permission.
Law of trespass covers direct violations, such as:
Using a shortcut across a neighbor's land;
Erecting a structure that encroaches the property line; and
Creating air pollution that crosses the property line.
Indirect invasions, such as noise, odors, or vibrations that interfere with the P's use and enjoyment of her land, are covered under nuisance law.
Evolution of Trespass Law
At early CL, trespassers were strictly liable (used strict property rule) for any intentional physical invasions of another's interest in the exclusive possession of land.
Ex: In Pile v. Pedrick (p.288), the Court held that a D who accidentally built a wall that went 1 3/8 inches on P's land had to rebuild the entire wall because he couldn't trespass on P's land in order to correct the trespass and remove the protruding stones.
Pile v. Pedrick 2 (p.289) held that the wall had to be rebuilt, but gave D reasonably time to comply or figure out some arrangement with P, who was probably just looking to get money out of D.
Benefits of this type of rule: Puts property owners on notice.
In Geragosian (p. 289), the Court held that D had to pay to remove trespassing structures even though they didn't interfere with P's use of the land and D had built them in good faith.
Little less strict property rule: made room for some equitable limitations such as estoppel and laches.
Also allowed that an injunction could be denied if P won't consent to "acts necessary to the removal . . . that he demands."
Under the Geragosian rule, the P in Pile would have had to let the D onto his land to remove the infringing stones or else damages, rather than an injunction, would have been assessed.
Statutes have been passed in many states to combat the inequities created by the CL doctrine, creates a hybrid property/liability rule.
Good faith improver legislation- allows for a good faith improver to seek judicial relief for trespass.
This means the court assessed damages (reasonable rent, attorney's fees, cost of assessment) to the defendant, rather than granting P an injunction and forcing D to take down the trespassing structure.
Raab v. Casper (p.292): modern liability rule.
Good faith improver building on other lands has the entitlement to keep the structure, but must pay the value of the underlying land to its rightful owner. This is a:
Property rule- because the property right shifts to the good faith improver, AND
Liability rule- because the original owner must be paid.
However, “good-faith” means not only believing it is yours but also being non-negligent in the belief (“honest & reasonable”).
In this case, D did not build in good faith because he was negligent. Therefore, old CL rule applies.
Limits on Trespass: Allowances for Public Policy
State v. Shack (p.372)
Farmer alleges trespass when an attorney and government social worker go on his farm to tell his migrant workers about their rights under an act of Congress.
Court completely denies the trespass claim here.
Public policy dictates the scope of private property rights. Private property rights exist for public benefit, and there are public policy reasons for that right not to be absolute here.
Owner has a duty not to limit the rights (conferred by the act of Congress) of the migrant workers.
Court holds that farmer has the right to restrict solicitors and peddlers and can ask other visitors to identify themselves so as to protect his workers.
KEY: There are different aspects of the right to exclude.
Compare to IP fair use doctrine for copyright.
Sometimes we have to balance between property rights and social interests because of public policy concerns.
Prune Yard Shopping v. Robbins (p.377)
PY is open to the public but doesn't let visitors circulate petitions. High school students are stopped while trying to gain support for a political movement.
PY argues that CA Constitutional provision giving 1st Amendment rights to people in publicly open areas is a "taking."
SCOTUS held that the CA Constitution can give additional rights on top of U.S. Constitution and PY must allow these students to exercise their rights, subject to time, place and manner (TPM) restrictions.
Court analyzes this under Penn Central, says this really doesn't amount to a taking because the mall lets in 25k people/day, so a few distributing pamphlets won't matter much. Mall can ensure that other patrons know they are not advocating the views of the students; the State isn't telling PY what to say.
