Trespass to Land Law Definition Elements Defense Lawyer
Definition
Trespass is an unlawful interference with the possession of real property. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) Generally, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership. (Id. at 258.)
The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261; CACI No. 2000.)
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Element 1: Plaintiff’s Ownership or Control of Property
It is a well-settled proposition that the proper party plaintiff in an action for trespass to real property is the person in actual possession. (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1104.)
No averment of title in plaintiff is necessary. A defendant who is a mere stranger the title will not be allowed to question the title of a plaintiff in possession of the land. It is only where the trespasser claims title himself, or claims under the real owner, that he is allowed to attack the title of the plaintiff whose peaceable possession he has disturbed. (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1104.)
An action for trespass may technically be maintained only by one whose right to possession has been violated; however, an out-of-possession property owner may recover for an injury to the land by a trespasser which damages the ownership interest. (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774.)
An out-of-possession property owner may recover for an injury to the land that damages his or her ownership interest. (Dieterich Int’l Truck Sales, Inc. v. J.S. & J. Servs., Inc. (1992) 3 Cal.App.4th 1601, 1610.)
One cannot commit an actionable interference with one’s own possessory right. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674.)
A condo owner’s ownership of a common area as a tenant in common and the ownership of an easement interest in a common area are sufficient to support an action for trespass. (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1245-46 [plaintiff had a possessory right superior to trespassers’ rights].)
A public utility’s interference with a property owner’s water rights constituted trespass. (Santa Clarita Water Co. v. Lyons (1984) 161 Cal.App.3d 450, 461.)
Element 2: Defendant’s Intentional, Reckless, or Negligent Entry onto the Property
The intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred. The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong. (Miller v. National Broadcasting Corp. (1986) 187 Cal.App.3d 1463, 1480-1481.)
An entry onto premises without permission of the owner is a trespass. (Miller & Desatnik Management Co. v. Bullock (1990) 221 Cal.App.3d Supp. 13, 20 n.5.)
The essence of a cause of action for trespass is an unauthorized entry onto the land of another. (Cassinos v. Union Oil Co. (1993)14 Cal.App.4th 1770, 1780.)
A trespass may be on the surface of the land, above it or below it. (Martin Marietta Corp. v. Insurance Company of North America (1995) 40 Cal.App.4th 1113, 1132.)
The spread of fire from defendants’ land onto plaintiffs’ land was an intrusion of a character sufficient to constitute a trespass. (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1306-1307 [interference need not take the form of a personal entry onto the property by the wrongdoer. Instead, it may be accomplished by the casting of substances or objects upon the plaintiff’s property from without its boundaries].)
Contamination
Leaks from underground storage tanks may constitute trespass. (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 99.)
The continued presence of contaminants on property may constitute a continuing trespass. (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345.)
Damage to a mineral estate caused by the injection of offsite waste water into an oil well was a trespass. (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1775.)
Physical Damage
An act that is substantially certain to result in vibrations on another’s land is an intentional trespass. (Staples v. Hoefke (1987)189 Cal.App.3d 1397, 1407 [upholding statement of law but determining that trial court’s refusal to so instruct was nonprejudicial].)
The emission of sound waves that caused actual physical damage to property constituted a trespass. Noise alone, without physical damage to the property, does not support a trespass action. (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 232-33.)
No trespass action stemmed from the emission of electromagnetic radiation from electric power lines, where the electric and magnetic fields were wholly intangible phenomena, and the plaintiffs failed to allege that the fields caused any physical damage to their property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 936-37.)
Elements 4 & 5: Causation and Damages
The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass. (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905.)
Causes of action for conversion and trespass support an award for exemplary damages. (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, 148.)
“It is true that an action for trespass will support an award of nominal damages where actual damages are not shown. However, nominal damages need not be awarded where no actual loss has occurred. “Failure to return a verdict for nominal damages is not in general ground for reversing a judgment or granting a new trial.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.)
Remedies
Damages for Annoyance and Discomfort
Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensure therefrom. (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 272.)
Emotional Distress Damages
The restrictions on emotional distress damages involved in breach of contract or negligence cases do not apply when a plaintiff’s emotional distress is the result of the defendant’s commission of a tort arising from an invasion of a property interest. (Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1348-49.)
Compensatory Damages
There are three measures of damages applicable to the pertinent types of trespass: (1) for willful and malicious trespass the court may impose treble damages but must impose double damages; (2) for casual and involuntary trespass the court must impose double damages, and (3) for trespass under authority, actual damages. (Drewry v. Welch (1965) 236 Cal.App.2d 159, 181.)
Statute of Limitations
The statute of limitations is three years unless a more specific statute states otherwise. (Cal. Civ. Proc. Code, §338.) Historically, the application of the statute of limitations for trespass has been the same as for nuisance and has depended on whether the trespass has been continuing or permanent. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1148.)
Permanent Trespass
In cases of a “permanent” trespass, the damages are complete, and the statute of limitations begins to run, when the trespass comes into existence. The plaintiff is required to bring one action for all past, present, and future damages within three years after the permanent trespass has occurred. (Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1485.)
Continuing Trespass
In cases of a “continuing” trespass, the plaintiff may bring successive actions for damages until the trespass is abated. However, recovery is limited, to the actual injury suffered prior to the commencement of each action. (Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1485.)
Affirmative Defenses
Necessity
It has long been recognized that necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose. (People v. Ray (1999) 21 Cal.4th 464, 473.)