44 Trespass

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

44 Trespass

A. Definition

Trespass is an interference with one's right to exclusive, peaceable possession.¹ It is distinguished from nuisance in that it is any intentional invasion of the plaintiff's interest in the exclusive possession of his or her property, whereas nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment of property.²

In Cedar Cove Homeowners Ass'n v. DiPietro,³ a homeowner constructed a brick patio that encroached onto commonly owned area. The homeowner's association argued that because the common area was involved, the law of trespass governed and trumped the clear language of the restrictive covenants; however, the court decided where issues involving common areas of a subdivision are resolved by reference to applicable restrictive covenants, those covenants control.

B. Elements

(1) legal possession
(2) voluntary entry on the property by the defendant
(3) the entry was without the plaintiff's permission.⁴

A plaintiff is not required to allege physical harm to state a claim for trespass, although lack of any allegation of physical harm will restrict the damages available to the plaintiff.⁵Santoro v. Schulthess⁶ appears to hold differently. In Santoro the defendant placed a temporary stopper in the leaking spillway to a pond on his property. The stopper caused flooding on the plaintiffs' property for three days. They brought a trespass action and were awarded $25,000 for the trespass and injunctive relief requiring the defendant to lower the level of the pond. The appellate court, however, found that the plaintiffs "presented no reliable evidence of permanent damage directly resulting from the three days of flooding caused by the placement of the temporary stopper in the spillway." It concluded it was error to award either damages or injunctive relief on the trespass claim.

C. Elements Defined

1. Legal Possession

To maintain a trespass action, there must be possession and a right to it.⁷ One in peaceable possession, though lacking title,⁸ is entitled to remain in possession until ousted by the true owner⁹ and need only show prior peaceable possession against the defendant.¹⁰An adverse possessor may thus bring a trespass action against anyone but the true owner.¹¹

2. Voluntary Entry on the Property by the Defendant

An action in trespass will lie if the defendant intentionally entered the property.¹² The degree of force, means of entry or extent of damage are not determinative. "[I]f one without license from the person in possession of land walks upon it, or casts a twig upon it, or pours a bucket of water upon it, he commits trespass ...".¹³ Intent is proved by showing the defendant acted voluntarily and knew or should have known the result would follow from his act,¹⁴ or unreasonably remained after permission has ended.¹⁵

3. The Entry Was Without the Plaintiff's Permission

Lack of permission is an essential element of a cause of action for trespass. Trespass requires that the defendant entered without permission or unreasonably remained after permission ended.¹⁶

D. Defenses

Permission is a defense to an action in trespass¹⁷ as is a legal authorization to enter as in the case of a right to recover chattel.¹⁸

The South Carolina Tort Claims Act¹⁹ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action.²⁰ The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.²¹

The statute of limitations applicable to trespass provides a six-year limitation period for actions accruing prior to April 5, 1988, and three years for those actions accruing on or after that date.²² The discovery rule applies.²³

E. Remedies

A trespass that is innocent or negligent is a basis for nominal²⁴ or compensatory damages.²⁵ Entry alone entitles the possessor to at least nominal damages.²⁶ Punitive damages may be awarded where the trespass was wanton, willful or in reckless disregard of the plaintiff's rights.²⁷ While there can be no punitive damages without actual damages,²⁸courts have held that evidence supporting an award of at least nominal damages would also support punitive damages.²⁹

Any continuing abatable invasion to property is a continuous injury, and each one, by the encroachment, gives rise to a new cause of action.³⁰ Injunction as a remedy is available for a continuous trespass.³¹

Although there is a statute limiting damages in civil actions to recover the fair market value of the timber to three times the fair market value of the timber,³² it is not the exclusive remedy available to an injured plaintiff. The plaintiff may proceed in trespass, and while recovery of damages for timber may be limited to three times the fair market value, the statute does not express a legislative intent that all damages resulting from that removal be capped.³³

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Notes:

^[1] Ravan v. Greenville County, 315 S.C. 447, 434 S.E.2d 296 (Ct. App. 1993); Johnson v. Phillips, 315 S.C. 407, 433 S.E.2d 895, 900 (Ct. App. 1993). See also Williams v. Smalls, 390 S.C. 375, 701 S.E.2d 772 (Ct. App. 2010) (very essence of trespass as cause of action is to ensure protection of rights and interests in real property, not least of which is right of exclusion). Ordinarily trespass would be an action at law, however, where the primary or sole purpose in asserting a trespass claim is to obtain injunctive relief, the claim is equitable in nature. Santoro v. Schulthess, 384 S.C. 250, 681 S.E.2d 897 (Ct. App. 2009).

^[2] Silvester v. Spring Valley Country Club, 344 S.C. 280, 543 S.E.2d 563 (Ct. App. 2001), cert. den., 356 S.C. 256, 588 S.E.2d 598 (S.C. 2003); Hedgepath v. AT&T, 348 S.C. 340, 559 S.E.2d 327 (Ct. App. 2001).

^[3] Cedar Cove Homeowners Ass'n v. DiPietro, 368 S.C. 254, 628 S.E.2d 284 (Ct. App. 2006) (charge of trespass against homeowners emanated solely from restrictive covenants).

^[4] Ralph King Anderson, Jr., South Carolina Requests to Charge - Civil § 4-41 (2009).

^[5] College of Charleston Found. v. Ham, 585 F. Supp. 2d 737 (D.S.C. 2008).

^[6] Santoro v. Schulthess, 384 S.C. 250, 681 S.E.2d 897 (Ct. App. 2009).

^[7] Lyles v. Fellers, 138 S.C. 31, 136 S.E. 13 (1926).

^[8] Gunter's Island Hunting Club v. Hucks, 282 S.C. 124, 317 S.E.2d 470 (Ct. App. 1984) (action for trespass may be based on possession and not necessarily legal title); Little v. Little, 223 S.C. 332, 75 S.E.2d 871 (1953). See also Hawkins v. City of Greenville, 358 S.C. 280, 594 S.E.2d 557 (Ct. App. 2004) (gist of trespass is injury to possession, and generally either actual or constructive possession is sufficient to maintain action).

^[9] Watson v. Motley, 121 S.C. 482, 114 S.E. 412 (1922).

^[10] Lyles v. Fellers, 138 S.C. 31, 136 S.E. 13 (1926) (plaintiff's possession is sufficient to maintain trespass against a wrongdoer but not against rightful owner); Beaufort Land & Investment Co. v....