Chapter 28 - § 28.1 • TRESPASS
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§ 28.1.1—Trespass and Negligence Distinguished
Trespass and negligence are two separate and distinct causes of action.1 The concept of trespass developed much earlier than the concept of negligence. In early English law, the writ of "trespass" had a basic criminal character and provided a cause of action for all direct and immediate injuries to person or property. "Trespass on the case," a separate writ which developed later, originally allowed remedies for all indirect injuries. It was from this latter writ that negligence emerged as a separate cause of action. Later, the writ of "trespass" also evolved into separate torts. In defining the modern tort of trespass to property, some jurisdictions still make a distinction between direct and indirect injuries, labeling the former an intentional or "simple" trespass and the latter as negligent trespass. These jurisdictions apply the defense of contributory or comparative negligence to the tort of negligent trespass. In Colorado, however, the present tort of trespass to property has no reference to the nature or immediacy of the harm, nor does Colorado recognize the tort of "negligent trespass." Thus, the fact that a trespass may have been caused by a negligent act is irrelevant, and comparative negligence is not a proper issue for consideration in a trespass action.2 Similarly, the doctrine of res ipsa loquitur does not apply to a claim for trespass.3 Nevertheless, an action may be based solely upon negligence.4
A trespass claim does not require proof of a legal duty or an applicable standard of care.5 Therefore, a trespass claim will not lie under the sovereign immunity statute,6 which provides that no liability may be imposed unless negligence is proven.7
§ 28.1.2—Definition of Trespass
Trespass is the physical intrusion upon the real property of another without the permission of the person lawfully entitled to the possession of the real property.8
Where an easement is granted, the grantee becomes a trespasser when he or she goes onto the grantor's land outside the authorized area and does damage.9 Similarly, continuing to use an easement after it has been revoked is a trespass.10 But when the holder of the easement is a government agency, exceeding the scope of the easement may be an inverse condemnation.11
Because a mineral rights holder is legally privileged to make such use of the surface as is reasonable and necessary to develop underlying minerals, a trespass occurs at the point when the holder exceeds the scope of that implied easement and thereby exceeds the legal authorization permitting mineral development activities.12 Although negligence and trespass are distinct and separate torts, the reasonableness of the mineral rights holder's surface use must be considered in determining whether he or she has committed a trespass.13
A person is not allowed to flood the property of another with water, or wash down the tailings of his or her sluice upon the claim or property of another; it is the duty of every miner to take care of his or her own tailings upon his or her own property or become responsible for all damages that may arise therefrom.14 A ditch corporation is required to keep its ditch in repair so that the water15 is not allowed to escape to the injury of a mining claim, road, ditch, or other property.16
An action for damages for trespass is subject to a two-year statute of limitations,17 but the 18-year statute of limitations18 applies in an action to recover possession.19
§ 28.1.3—Elements of Trespass
Ownership of Property
In a trespass action, the burden of proving good title is on the plaintiff.20 One having no possessory interest in land cannot bring an action of trespass.21 For example, a utility cannot complain that a rival utility trespassed upon the lands of a third person.22 Nevertheless, a beneficiary under a deed of trust may maintain an action to recover damages for the impairment of his or her security, although he or she has neither possession nor the right to possession.23 An action for trespass belongs to the person owning the property at the time of the trespass, and absent an express assignment, does not pass with the land to subsequent owners.24
A plaintiff need not be in actual possession to bring an action of trespass;25 a constructive possession is sufficient.26 But a plaintiff without title must prove actual possession.27 Upon the issuance of a receiver's receipt, the title of the claimant relates back to the date of his or her filing, and he or she may bring an action for trespass for any injury done to the land in the meantime.28 One who has acquired property by adverse possession can assert a trespass claim against the former owner only for acts occurring after his or her interest has matured into an absolute fee.29 Conversely, one who had acquired property by adverse possession is not liable to the former owner for trespass occurring during the period of adverse possession.30 One owning land subject to a railway right of way cannot assert a trespass claim for the railroad's use of the right of way.31
Intent
The intrusion upon the real property of another can occur when one intentionally enters land possessed by another, or when one causes something to enter the land.32 Liability for trespass requires only an intent to do the act that itself constitutes, or inevitably causes, the intrusion.33 One may, without actually entering the land, invade another's interest in its exclusive possession by placing a thing either on or beneath the surface.34 A landowner who sets in motion a force which, in the usual course of events, will damage property of another, is guilty of trespass on the property.35
A plaintiff need not establish defendant's willfulness in order to prevail on a trespass claim.36 It is no longer necessary to allege that the entry was "a wrongful or unlawful entry, vi et armis, contra pacem, et cetera," where possession, entry, and damage are sufficiently alleged.37 Ignorance of the boundary lines is no defense to a trespass claim.38
Harm or Damage
By intentionally entering the land possessed by someone else, or causing a thing or third person to enter the land, an individual becomes subject to liability for trespass, whether or not he or she caused harm to any legally protected interest of the landowner.39 But although an intangible intrusion may give rise to a claim for trespass, the aggrieved party must be able to prove physical damage to the property caused by such intangible intrusion.40
§ 28.1.4—Continuing Trespass
The typical trespass (or nuisance) is complete when it is committed; the claim for relief accrues, and the statute of limitations begins to run at that time. But in cases, for example, where the defendant erects a structure or places something on or underneath the plaintiff's land, the defendant's invasion continues if he or she fails to stop the invasion and to remove the harmful condition. In such a case, there is a continuing tort so long as the offending object remains and continues to cause the plaintiff harm. In the context of trespass, one's failure to remove a thing tortiously placed on another's land is considered a "continuing trespass" for the entire time during which the thing is wrongfully on the land. Until the thing tortiously placed on the land, or underneath the land, is removed, then liability for trespass remains.41
A continuing trespass from day to day is considered in law a trespass on each day; damages being continually incurred; the trespasser is liable until the trespass is ended and the cause of damage removed.42 Business and residential uses are enjoinable in a proper case if they constitute a continuing trespass on the property of another.43
An exception to the concept of continuing trespass (and continuing nuisance) is the situation (designated by the Colorado Supreme Court as a "permanent tort"), such as the presence of an irrigation ditch or a railway line, where the property invasion will and should continue indefinitely because the defendant, with lawful authority, has constructed a socially beneficial structure intended to be permanent.44 The exception does not apply where the original entry was by trespass.45
The continuing trespass doctrine does not permit a landowner to claim injury on each day of contamination for the purpose of determining the time within which to give notice under the Governmental Immunity Act.46
§ 28.1.5—Encroachment of Structure
In Golden Press, Inc. v. Rylands,47 the court said:
Ordinarily, mandatory injunctions will issue to compel removal of encroaching structures, but it is not to be issued as a matter of course. On appeal to the court for an equitable remedy, the court must consider the peculiar equities of the case. . . ....
Where the encroachment is deliberate and constitutes a willful and intentional taking of another's land, equity may well require its restoration regardless of the expense of removal as compared with the damage suffered therefrom; but where the encroachment was in good faith, we think the court should weigh the circumstances so
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