Trespass

A sign warning against trespassing

In law, trespass can be:

1. the criminal act of going into somebody else's land or property without permission of the owner or lessee;
2. a civil law tort that may be a valid cause of action to seek judicial relief and possibly damages through a lawsuit - see trespass to land.

In some jurisdictions trespassing is an offense or misdemeanor covered by a criminal code. In other jurisdictions, it is not considered a crime or penal in nature, property is protected from trespass under civil law and privacy acts. In England and Wales, despite the prevalence of notices asserting that "trespassers will be prosecuted," unless the trespass is aggravated in some way, it will only be a civil wrong.

Although criminal and civil trespass laws vary from each jurisdiction, most have the following facets in 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 or shooting at trespassers are usually strictly forbidden except in extreme circumstances. A notable exception is the U.S. state of Texas, where it is legal to use deadly force against trespassers after dark (Penal Code § 9.42).
• 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 or process server seeking to execute a warrant is an invitee. Someone such as a door-to-door salesman or missionary (a Jehovah's Witness or Mormon for example), would be a solicitor and not afforded the invitee exclusion to enter, and therefore be a trespasser.
• 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. A large exception to this rule are railroads in the USA, who employ their own police forces to enforce state trespassing laws. Railroad police have the ability to independently arrest and prosecute trespassers without the approval or assistance of local law enforcement.
• 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 enter/use the property to secure help. 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, 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 put up 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.

Other legal uses

• Assault and battery are trespasses to the person and actionable in tort as such.
• The unlawful interference with the goods of another is a trespass against his goods, and 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 upon the case.

A sign warning against trespassing at Mater Dei High School in New Jersey

Wider uses

The term 'trespass' is also used for a transgression in general, also in the traditional version of the Lord's Prayer. 'Trespass' is in fact a shorter English version of the Latin transgressio.^{[citation needed]}

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 are also the most basic - barbed wire, warning signs and fencing.

Trespass to land

Trespass to land is a common law tort that is committed when an individual intentionally (or in Australia negligently) enters the land of another without lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.

For trespass to be actionable, the tortfeasor must voluntarily go to a specific location, but need not be aware that he has entered the property of a particular person. If A forces B against his or her will onto C's land, C will not have action in trespass against B, because B's actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be jointly liable with B for B's trespass.

In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia, negligence may substitute the requirement for intent. Thus in that country, if a person trips and rolls upon the land of another, for want of due care, he or she would likely be found to have committed trespass.

If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a remedy, and may even forfeit certain property rights. See Adverse possession and Easement by prescription.

Trespass may also arise upon the easement of one person upon the land of another. For example, if A grants B a right to pass freely across A's land, then A would trespass upon B's easement by erecting a locked gate or otherwise blocking B's rightful access.

The maxim "cuius est solum, eius est usque ad coelum et ad infernos" (whoever owns the land owns it all the way to the heavens and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). The courts have been more lenient with underground trespass. The Kentucky Court of Appeal in Edwards v Sims 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reticent to do so in Di Napoli v New Beach Apartments (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.

There may be regulations that hold a trespasser to a higher duty of care, such as strict liability for timber trespass (removing trees beyond a permitted boundary), which is a type of trespass to chattels as a result of a trespass to land.

Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner's quiet enjoyment of his rights, there may be an action for nuisance, as where a disagreeable aroma or noise from A drifts across the land of B.

As with other intentional torts, the defences of necessity and consent are available for trespass to the person.

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