The following entry is excerpted from Tentative Draft No. 2 for Restatement of the Law Fourth, Property. Included below is the Topic Note to Trespass to Land, Generally; § 1.5. Intent Required for Trespass to Land, and Comment b. to § 1.5. The full draft contains additional Black Letter, Comments, and Reporters’ Notes. If you are interested in obtaining a copy of this draft, please contact us.

This draft will be presented to membership at the 2021 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

Topic 1. Trespass to Land

Topic Note: Trespass to Land, Generally

At its core, the tort of trespass to land protects and vindicates a possessor’s right to exclusive possession against physical intrusions that are intentional (in the particular sense discussed in § 1.5 below) and unauthorized. Thus, the standard instance of this tort involves an actor, without permission or other authorization, intentionally entering land that is possessed by another, or intentionally causing a physical entry upon land that is possessed by another. (As explained below, in addition to cases of entry, some trespasses involve actors remaining on, or failing to remove objects from, land.)

Following the conventional format for Torts Restatements, the materials that follow break down this legal wrong into a prima facie case, which ordinarily the plaintiff must plead and prove, and affirmative defenses. The intent and entry aspects of the tort form part of the prima face case, whereas issues of authorization are treated as defenses.

It bears emphasis that, like nuisance, conversion, and trespass to personal property, trespass to land sits at the intersection of property and tort law—as reflected in the dual role the following provisions serve as part of both the Restatement of the Law Fourth, Property, and the Restatement of the Law Third, Torts. Thus, in addition to setting standards for guiding how actors interact with others’ land, trespass helps define the entitlements that possessors—and, by extension, owners—enjoy with respect to land-related resources. Trespass also helps to flesh out core property-law notions, such as possession, and reflects policies served by property law more generally.

As is true for all torts, lawyers and judges will do well to keep in mind the general nature of trespass to land as they consider its application in particular contexts. To be sure, the evaluation of specific conduct, especially in the course of litigation, calls for analysis of the elements of the tort and associated defenses as set forth in this Restatement. Nonetheless, it is important that fine-grained analyses of intent, physical intrusion, permission, and other distinct features of trespass to land stay true to the widely shared moral intuitions that underly the tort and the purposes it serves. Keeping in mind the “gist” of the tort as one works through such analyses can help ensure that particular applications of the law of trespass are consistent with its grounds and purposes.

§ 1.5. Intent Required for Trespass to Land

To be subject to liability for trespass to land, the actor must intend to make physical contact with, or intend to remain on, or intend to cause a thing or person to make physical contact with or remain on, land that is in another’s possession. The actor need not intend to violate another’s possessory rights. Nor is it necessary for the actor to know, or to have reason to know, that the land is in the possession of the other.

b. Intent; civil v. criminal. While it is accurate to assert, as many authorities do, that trespass to land is an intentional tort, great care must be taken in describing the intent element of this tort. The intent requirement of trespass is relatively undemanding and largely divorced from heightened notions of culpability, at least compared to the intent element of a tort such as assault (intent to cause another to apprehend imminent harmful contact) or false imprisonment (intent to confine another). This is not to say, however, that the requirement is empty. It precludes liability for trespass in cases in which an actor enters, or remains at, a particular point in space without any intention to do so.

As explained in Comment f to § 1.1, the mere intent to perform a bodily movement is not sufficient (offering the example of a person who intentionally throws a ball without an intent that the ball reach the location that it reaches). At the same time, an intent to invade another’s right or to cause harm to the property of another is not necessary. Thus, whereas criminal trespass is typically defined to require proof that the defendant entered land knowing that he or she lacks permission, or with reckless disregard for lack of permission, civil liability for trespass requires (for the intent element) only proof that the defendant intended physically to occupy, or cause a physical occupation of, land that (as it turns out) is possessed by another. An actor who intends to walk across a particular swath of land, or to build or place an object on that land, and then does so, is subject to liability for trespass if that land is possessed by another. This is so even if the actor did not desire to enter or cause entry onto another’s land, and did not know that the land was possessed by another.

These observations about intent bear on whether or not a trespass has been committed, not on what remedies are appropriate for a successful trespass claimant. One who, on the basis of reasonable mistake as to boundaries, intentionally walks on land that is in fact possessed by another is subject to liability for compensatory damages, but has not engaged in the sort of willful or wanton misconduct that, in many jurisdictions, would allow for an award of punitive damages. Likewise, in cases in which a possessor complains of encroachment by a structure, the fact that the builder of the structure did not intend to violate another’s property rights (but instead merely intended the structure to be located where it is located) would typically weigh against the provision of injunctive relief.

John C. P. Goldberg

Associate Reporter, The Restatement of the Law Fourth, Property

John Goldberg, an expert in tort law, tort theory, and political philosophy, joined the Harvard Law School faculty in 2008. From 1995 until then, he was a faculty member of Vanderbilt Law School, where he served as Associate Dean for Research (2006-08). He is co-author of a leading casebook, Tort Law: Responsibilities and Redress (4th ed. 2016), as well as The Oxford Introductions to U.S. Law: Torts (2010).

Henry E. Smith

Reporter, The Restatement of the Law Fourth, Property

Henry Smith is the Fessenden Professor of Law at Harvard Law School, where he directs the Project on the Foundations of Private Law. Professor Smith has written primarily on the law and economics of property and intellectual property, with a focus on how property-related institutions lower information costs and constrain strategic behavior.

Pauline Toboulidis

The American Law Institute

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