B. Interference with Property

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

B. Interference with Property

1. Trespass to Land

a. Elements of the Cause of Action

Trespass to land is an interference with another's present right of possession.²³⁷ The action in trespass—"trespass quare clausum fregit"—is based on possession only and not necessarily on title.²³⁸ At common law one in peaceable possession of real property is entitled to continue in possession until ousted by the true owner,²³⁹ and the plaintiff in a trespass action need only show prior peaceable possession as against the defendant.²⁴⁰ Thus, one in peaceable possession, including, for example, an adverse possessor,²⁴¹ may maintain an action for trespass against anyone, except the true owner, who interferes with the owner's quiet and exclusive possession of the property,²⁴² even though no injury resulted from the invasion,²⁴³ and even though the defendant acted innocently,²⁴⁴ so long as the defendant's act which resulted in the entry or other interference with possession was "intentional."²⁴⁵

The historical requirements for recovery under the common law action of trespass include "an invasion (a) which interfered with the right of exclusive possession of the land, and (b) which was a direct result of some act committed by the defendant."²⁴⁶ Trespass has been defined as "any intentional invasion of the plaintiff's interest in the exclusive possession of his property."²⁴⁷ To constitute actionable trespass, however, there must be an affirmative act, invasion of land must be intentional, and harm caused must be the direct result of that invasion.²⁴⁸ The gist of trespass is the injury to possession, and generally either actual or constructive possession is sufficient to maintain an action for trespass.²⁴⁹ Trespass does not lie for nonfeasance or failure to perform a duty.²⁵⁰

A trespass also occurs if one rightfully on the property remains unreasonably after permission to remain has ceased²⁵¹ or, in the case of an easement, if the owner of the dominant estate exceeds the right of easement.²⁵²

The requirement of a physical entry distinguishes trespass from nuisance, which protects the right to use and enjoyment of land rather than the right of possession.²⁵³ "In South Carolina 'anything' working inconvenience or damage, or interfering with the enjoyment of life or property is a nuisance."²⁵⁴ Where an easement is involved, it appears that a nuisance action is appropriate where a third party interferes with passage.²⁵⁵

Nuisance or trespass to land may arise from the discharge of "surface water" from one's property to that of another.²⁵⁶ In such cases South Carolina follows the "common enemy" doctrine, according to which such water is the common enemy of all; and a landowner may take any measures necessary to protect his property even if they result in damages to the property of another. This rule and the exceptions to this rule are discussed in Chapter 3.²⁵⁷

Nuisance or trespass to land may also be applicable to claims of pollution.²⁵⁸ These claims may also involve claims of abnormally dangerous activity and claims under federal law.²⁵⁹

At one time South Carolina adopted the Uniform State Law for Aeronautics to deal with the upward extent of the property right above the surface of land and the liability of those who operate aircraft.²⁶⁰ The extent of vertical ownership was governed by South Carolina Code Section 55-3-50 which provided, "[f]light in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath." The legislature amended this statute in 2012, however, to remove the language regarding "flight." The statute now provides:

The landing of an aircraft on the lands or waters of another without his consent is unlawful, except in the case of a cautionary or emergency landing. This section shall not apply to landings on waters of the state or other navigable waters where the waters are normally open to the public or available for public use nor shall this section apply to landing at public use airports, or airports owned or operated by a governmental body or political subdivision. The owner or lessee of the aircraft or the airman is liable in accordance with applicable law for injury to a person or property caused by an emergency or precautionary landing made in accordance with this section.²⁶¹

Liability for unauthorized entry on the surface is governed by Section 55-3-60 which provides:

The owner of an aircraft operated over the land or waters of this State is absolutely liable for injury to persons or property on the land or water beneath the aircraft which is caused by ascent, descent or flight of the aircraft or the dropping or falling of an object from an aircraft, whether the owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to person or property both owner and lessee is liable and they may be sued jointly or either or both of them may be sued separately. An airman who is not the owner or lessee is liable only for the consequences of his negligence.... This section shall not apply to damage to airport property that is neither malicious nor intentional, nor shall this section apply to damage to crushable materials, collapsible structures, or aircraft arresting systems that are designed to deform when used.²⁶²

Although Section 55-3-60 speaks of "absolute liability,"²⁶³ a prior version of the statute has been applied to impose liability on the federal government for the "wrongful act" of trespass under the Federal Tort Claims Act.²⁶⁴ The statute has also been applied to impose liability for pollution and fish kill caused by chemicals which strayed onto plaintiff's land while defendant was spraying crops on adjacent fields.²⁶⁵

b. Defenses

As indicated in the Introduction, charitable immunity²⁶⁶ and workers' compensation exclusivity²⁶⁷ can apply to intentional torts.

(1) Consent or Permission

Consent to enter upon premises is a valid defense to an action in trespass where no damage is done and no breach of the peace is involved.²⁶⁸ However, even where there was consent to the initial entry, a trespass is involved if one remains unreasonably after permission to remain has ceased.²⁶⁹

(2) Authorization

One who enters upon the land of another under legal authorization or privilege does not commit a trespass so long as the authorization persists or is not abated by legal proceedings. A person purporting to enter under the authority of another is liable for trespass if the other lacks the authority to enter.²⁷⁰

One who has a right to recover chattels—for example, a chattel mortgagee to whom the title has passed upon condition broken—has by implication the right, without the institution of legal proceedings, to enter peacefully upon the property of the mortgagor where necessary²⁷¹ but not into the residence of the mortgagor.²⁷² However, this right must be exercised without committing a breach of the peace.²⁷³ Thus, "if the mortgagee finds that he cannot get possession without committing a breach of the peace, he must stay his hand, and resort to the law, for the preservation of the public peace is of more importance to society than the right of the owner of a chattel to get possession of it."²⁷⁴

(3) Sovereign Immunity

South Carolina has abrogated significantly sovereign immunity, and governmental units now risk considerable liability for their torts, including trespass, where there is no legal authorization for the entry.²⁷⁵ Where sovereign immunity prohibits or limits recovery,²⁷⁶ plaintiff may still have a right to "just compensation" if the trespass amounts to a "taking."²⁷⁷ However, there must be some positive action by the governmental unit to render it liable for damages under the constitution²⁷⁸ or under a statute.²⁷⁹

(4) Statute of Limitations

South Carolina Code Section 15-3-530 established a six-year limitation period in an action for trespass to real property arising or accruing prior to April 5, 1988, and a three-year period on or after April 5, 1988.²⁸⁰ The "discovery" rule applies; thus, the statute of limitations runs from the time when the facts and circumstances of the injury would place a reasonable person on notice that a claim against another party may exist.²⁸¹ When there are continuing abatable invasions of property, the injury is continuous and each encroachment gives rise to the right to file a new claim.²⁸²

c. Remedy—Damages, Injunctive Relief, and Self-Help

If plaintiff proves a trespass, plaintiff is entitled to some damages, if only nominal.²⁸³ The damages recoverable for a temporary trespass or nuisance claim are limited to the lost rental value of the property.²⁸⁴ The damages recoverable for a permanent trespass or nuisance claim are limited to the full market value of the property.²⁸⁵

Innocent or merely negligent trespass affords a basis for only nominal or compensatory damages.²⁸⁶ Treble damages may be awarded by statute for forcible entry and detainer— "ouster"; however, these statutes do not apply to ordinary trespassers.²⁸⁷ When defendant has acted wantonly, willfully or in reckless disregard of plaintiff's rights, punitive damages are justified.²⁸⁸

Repeated trespasses after one is on notice to stay off another's land have been characterized as willful and wanton.²⁸⁹ Similarly, evidence of entry upon property with knowledge that one has no right to do so warrants an inference of willfulness.²⁹⁰

A plaintiff who establishes trespass need not show significant actual damages if the facts otherwise justify an award of punitive damages. Where there has been a willful trespass "but no substantial damage has been shown to have resulted therefrom, a verdict for...