Chapter 34 TRESPASS

• Jurisdiction: North Carolina

34 TRESPASS

A. Definition

Trespass is a wrongful invasion of the possession of another.¹ When a person enters and remains on land possessed by another without the possessor's consent or any other privilege, that person is a trespasser.²

There is also an action for trespass to chattels recognized in North Carolina law.³

B. Elements

The elements of trespass to real property are:

(1) Plaintiff's possession of the property at the time the trespass was committed,
(2) An unauthorized entry by the defendant, and
(3) Resulting damage to the plaintiff.⁴

The third element implies causation.⁵

C. Elements Defined

1. Plaintiff was in Possession of Property at Time of Alleged Trespass

A legally recognizable interest in the property is necessary to meet the first element.⁶ Generally, the plaintiff must have had possession of the property at the time the alleged trespass occurred.⁷ However, in Graham v. Deutsche Bank National Trust Co.,⁸ the courts said that "the first element of a trespass claim may be satisfied even where . . . the landowner asserting the claim did not own the property at the time the original trespass was committed as long as she was in possession of her land while the trespass was ongoing." Therefore, subsequent landowners who purchase the subject property after an encroaching structure has already been built may still meet the first element, as maintenance of the encroaching structure is itself a trespass that continues each day of the encroachment.

The property interest subject to intrusion is potentially broad. The Restatement provides that an intrusion may be on,⁹ beneath¹⁰ or above¹¹ the surface of the earth.¹² However, flight by aircraft in the air space above the land of another is a trespass, according to the Restatement, only if it enters into the "immediate reaches" of the air space next to the land, and interferes substantially with the use and enjoyment of the land.¹³ North Carolina has a statute that essentially embraces the Restatement principle. The statute provides:

Flight 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 injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath.¹⁴

In Wall v. Trogdon, the North Carolina Supreme Court, following the statute, said:

Actionable trespass to land is not made out by merely showing that defendant's airplane crossed the air spaces above it at a low level. Plaintiff must show that such flight was '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 that such flight was 'so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath.' Nor is actionable trespass to land made out by merely showing that in crossing the air space above the land a liquid streamed from the airplane, without showing that such liquid made an entry upon the lands or waters of the plaintiff, i.e., landed on plaintiffs' property rather than somewhere else.¹⁵

The plaintiff need not prove title, only possession.¹⁶ Constructive possession may be sufficient meet the first element of an action for trespass.¹⁷ A life tenant,¹⁸ a person possessing adversely,¹⁹ the owner of an easement²⁰ or of riparian rights²¹ may all bring an action for trespass. However, where the property at issue is navigable water subject to the public trust doctrine, no party can attain possessory rights in it sufficient to support a trespass cause of action.²²

Ordinarily, a tenancy will be a sufficient possessory interest to support a claim for trespass.²³ Thus, a landlord may be guilty of trespass on property he or she leases to a tenant.²⁴ And, generally, a possessor with no claim of title may have rights against the true owner.²⁵

2. Defendant Made an Unauthorized Entry

The plaintiff should show that the intrusion was unauthorized.²⁶ A "wrongful entry" — i.e., a threat to the owner's possessory rights — need not be shown since the element needed to prove trespass is "less involved" and requires simply "an unauthorized presence."²⁷ The entry may be by a person²⁸ or an instrumentality such as dust,²⁹ animals,³⁰ a bullet,³¹ sediment,³² underground contaminants,³³ vibration³⁴ or water.³⁵ Wrongful maintenance of an encroaching structure is a trespass each day it remains and constitutes a distinct wrong. Therefore, where a defendant fails to remove a structure that encroaches on the plaintiff's property, the second element of a trespass claim is established.³⁶

Any unauthorized entry will support an action for trespass,³⁷ but the entry must be by the defendant, not an independent third-party.³⁸ If the entry is authorized, the action for trespass fails.³⁹ For example, in Pine Knoll Ass'n v. Cardon,⁴⁰ the plaintiff was an association whose members had a right to use the "common property" on which the trespass was alleged to have occurred. The defendant was a member of the association. Since the plaintiff did not forecast evidence that the defendant, as one of its members, was not authorized to use the property, there was no unauthorized entry, and summary judgment for the defendant was proper.

As a general rule, it is said that the entry must be intentional.⁴¹ For example, a North Carolina federal district court said that there must be some intent involved, although not an intent to do injury.⁴² Merely an intent to go on the land of another is sufficient.⁴³ The state courts appear to agree.⁴⁴ Indeed, North Carolina courts have said the fact the defendant entered the premises with a bona fide belief that he or she was entitled to enter the property is no defense to trespass.⁴⁵ Neither is reliance on advice of counsel in reaching a mistaken conclusion that one is entitled to enter the plaintiff's property.⁴⁶ Additionally, the Restatement addresses liability for intrusions that result from recklessness, negligence or abnormally dangerous activities. It says that someone "who recklessly or negligently, or as a result of an abnormally dangerous activity, enters land in the possession of another . . . is subject to liability to the possessor" only if his or her presence causes harm.⁴⁷ North Carolina courts appear to agree that negligent entry⁴⁸ or engaging in an ultrahazardous activity⁴⁹ will support a trespass action.⁵⁰ However, an accidental entry — i.e., one without fault — apparently incurs no liability at all.⁵¹

The force required to establish a valid claim for trespass is another issue discussed by courts. In general, under North Carolina law, the plaintiff must show that "the injurious act was the result of force originally applied by the defendant."⁵² However, "[a]ny unauthorized entry on land in the actual or constructive possession of another constitutes a trespass, irrespective of degree of force used or whether actual damage is done."⁵³

Consent⁵⁴ to enter property may be explicit⁵⁵ or it may be implied.⁵⁶ Misrepresentation of identity does not necessarily invalidate a consent; rather, individual facts of the case determine whether consent given pursuant to a misrepresentation remains valid.⁵⁷ It is said that a person impliedly consents to anything reasonably necessary to accomplish anything explicitly consented to.⁵⁸ An invitation to enter the land is not required; it is enough that the conduct of the person in possession indicates that he or she consents to the entry.⁵⁹ For instance, the existence of a driveway or walkway connecting to a public street or leading to a house may, absent notice to the contrary, be considered implied consent to enter the property, and strangers may assume an implied consent to walk to the front door of the house.⁶⁰ Consent by the plaintiff's landlord does not relieve a wrongdoer from liability for trespass since a tenant has a right to possess the premises and can maintain an action for trespass, regardless of any consent by the landlord.⁶¹

Where a railroad company owned right-of-way over the plaintiff's land and, over plaintiff's objection, built — to replace one that had burned — a trestle of dirt and concrete that prevented plaintiff from passing under the railway, there was no trespass. The railroad company had a right to enter on its right-of-way and replace the burned trestle,⁶² and if the new construction placed a heavier burden on the plaintiff's land than permitted by the easement, the plaintiff's remedy was a statutory condemnation proceeding.⁶³ Similarly, where a public sewer utility sought an injunction against a property owner to prevent him from interfering with its easements and the owner counterclaimed for continuing trespass, arguing the utility was without authority to install sewer lines on his property, his trespass action failed because the exclusive remedy for failure of the utility to compensate for a "taking" is a statutory inverse condemnation action.⁶⁴

Even an authorized entry may be trespass "if a wrongful act is done in excess of and in abuse of authorized entry."⁶⁵ An entry may be unauthorized even though it initially is peaceful or made with the permission of the plaintiff.⁶⁶ For example, in Suggs v. Carroll,⁶⁷ the plaintiffs' evidence was that two of the plaintiffs' daughters — defendants in the action — were visiting her. Another daughter, who lived with her mother, discovered one sister was attempting to record a conversation and ordered her to leave. The defendant refused and the other sister left to find her brother. While she was away, the mother twice asked her visitors to leave. The request was refused. A trial court found for the plaintiffs in their trespass action. On appeal, the defendants argued the evidence was insufficient to support a verdict of wrongful trespass. There could be no...