Trespass

Trespass is the unauthorized entry onto or use of property, either real or personal. The legal concept of trespass was developed in English common law during the thirteenth century as a means of protecting the king’s interest in land and was not considered a protection of privacy per se. Today trespass is most often used to describe an intrusion into or an infringement of one’s rights to real property. While a trespass action is frequently filed to protect a property owner’s privacy rights, the action is still grounded in the land-based property concerns of early England. For example, when a former U.S. congressman felt that reporters from the Baltimore Sun invaded his privacy by interviewing him in his nursing home room, his trespass action needed to be supplemented by an action for “intrusion upon seclusion” under Maryland law to address his privacy concerns (see Mitchell v. Baltimore Sun Co., Md. Ct. Spec. App., No. 266, 9/29/05). It is more helpful to think of a trespass action as a tool to keep others from one’s property so that one’s privacy is protected rather than as a tool to protect one’s privacy. In most jurisdictions, to succeed in a civil trespass action, one must prove actual damages, although the damages may be slight.
Criminal trespass is more difficult to explain because the laws vary from jurisdiction to jurisdiction. Under English common law, criminal sanctions were not appropriate unless the trespass was accomplished by violence or a breach of the peace. Today, some states make any entry onto another’s land without authority a crime. If the trespass involves violence or injury to a person or property, it is usu-ally considered criminal, although the resulting charges may not actually be for trespass itself. Many jurisdictions, but not all, require proof of criminal intent to prove criminal trespass. There are also jurisdictions that require proof that the tres-passer had an unlawful purpose for entering into or remaining on the land to support a charge of criminal trespass. Still other jurisdictions will not find there has been a criminal trespass unless the trespasser was first warned, by either a sign or some other method, that trespassing is prohibited.
Generally, courts will hold trespassers responsible for the consequences of their actions, including unintended or unanticipated consequences. Thus, if a trespasser lights a fire to cook a meal but sets a forest on fire, the trespasser will be held liable to the landowner for damages to the timber, the costs of fighting the fire, and any other consequential damages. Absent specific statutes protecting privacy, courts will usually not award damages in trespass for violation of privacy.
One of the more interesting and challenging questions of trespass is how far above or below ground level the right to possession of land extends. In United States v. Causby, 328 U.S. 256 (1946), the Supreme Court held that airspace above land is like a public highway and ordinary airplane flights cannot commit trespass. Nevertheless, a construction boom moving building materials over land may constitute a trespass, as may a roof that hangs over another’s property. A trespass may be committed by tunneling or mining under another’s land, or by forcing water to flow under another’s property. A trespass action in these circumstances, however, will generally be permitted only when there is damage to the surface land or interference with a landowner’s use of the property.
The old English concept of trespass on chattels has found a new life in computer privacy litigation. Federal courts in several jurisdictions have held that the ancient doctrine applies to the “trespass” by spyware on computers via the Internet. Companies like America Online, Compuserve, Intel, and eBay have successfully used the doctrine to battle spammers and hackers. The cause of action provides hope for private users as well in the battle to protect privacy when they can allege that unauthorized spyware tracks their Internet use, invades their privacy, and causes damage to their computers. In addition, states are adopting criminal laws to prevent “computer trespass.”
To understand the concept of trespass, it is helpful to understand the defenses to the charge whether in the civil or criminal arena. Generally, for example, public officials have no special rights allowing trespass. Nevertheless, building inspectors, health inspectors, and the like may have the authority to enter onto private property without an owner’s consent. The distinction is that the entry is with lawful authority.
Those who enter land to protect another’s property or to save a life will not be found guilty of trespass. Those with permission to enter property will not be guilty of trespass unless they violate the terms of the original grant of authority allowing them to enter. For example, generally a shopper in a store is not guilty of trespass, as the owner has authorized the shopper’s entry. If, however, the shopper entered the store to steal merchandise, the shopper may be guilty of trespass.
Property owners are limited in the actions they may take in response to trespassers. They may put up fences and post signs limiting access, but they may not set traps for unwary trespassers or shoot at them. Furthermore, landowners or tenants on the land have no duty to protect or warn trespassers from existing hazards, but they also cannot create situations to intentionally cause harm to those trespassers. Nevertheless, if a property owner knows that people regularly trespass at one or more locations on that owner’s land, the owner must take steps to keep trespassers out or take steps to prevent their injury.