Chapter 42 - § 42.3 • ELEMENTS DEFINED

• Jurisdiction: Colorado

§ 42.3 • ELEMENTS DEFINED

§ 42.3.1—Physical Intrusion on the Property of Another

The first element of the tort of trespass — physical intrusion on the property of another — has been well defined by Colorado courts. In general, trespass may occur where the defendant enters or occupies the plaintiff's property.⁸ The defendant need not personally enter or occupy the property for a cause of action to lie: trespass may occur where the defendant causes a thing or third person to enter the plaintiff's property.⁹ Similarly, a defendant who sets in motion a force that, in the usual course of events, will damage property of another may be liable for trespass.¹⁰

A plaintiff need not show willfulness to prevail on a trespass claim,¹¹ and lack of intent to trespass is not a defense.¹² Trespass requires only the intent to do the act that itself constitutes or causes the intrusion.¹³ Colorado does not recognize negligence-based trespass claims.¹⁴

Many different types of intrusions have supported trespass actions in Colorado. These include, but are not limited to, the following:

• Directing grading work to be performed on the plaintiff's property without permission;¹⁵
• Constructing a roof improvement that resulted in snow occasionally sliding from the roof of one house onto the roof of another;¹⁶
• Removing a portion of a railroad grade, causing water, mud, and debris to flow from the defendants' property onto the plaintiffs' property;¹⁷
• Altering the drainage pattern of surface water;¹⁸
• Improperly installing a drainage pipe on the defendant's property, causing the plaintiff's foundation to crack and water to seep into his basement;¹⁹
• Managing a chicken farm in a manner resulting in the breeding and multiplication of flies that intruded on the plaintiffs' property;²⁰
• The leaching of chemicals from the defendant's land to the plaintiff's land;²¹
• Where a lease expires and the tenant remains in possession of the premises;²²
• Where an easement is granted, but the defendant goes onto the plaintiff's land outside of the easement area;²³
• Where buildings remain present, without a landowner's consent to the continued occupation of his or her land by the buildings;²⁴ and
• Where an intangible intrusion — such as noise, electromagnetic fields, or radiation waves — causes physical damage to the property.²⁵

In sum, the cases demonstrate that to satisfy the first element of the tort of trespass, a plaintiff must show the defendant or the defendant's agents physically intruded upon the land, or caused a physical intrusion upon the land. An intangible intrusion is insufficient unless it causes physical damage.

§ 42.3.2—Lack of Proper Permission

Colorado courts have also thoroughly defined the second element of the tort of trespass — failure to obtain permission to enter or occupy the property at issue. The courts have looked to a number of sources in determining whether the defendant lacked the plaintiff's permission to enter or occupy the property.

One common source is contract. For example, in Magliocco v. Olson, where a lease provided that "[t]he landlord, or its agents or representatives, may at reasonable times enter into or upon said premises or any part thereof for the purpose of examining the condition thereof[,]" the court found that the language implied the right to show the premises while examining their condition.²⁶ Because there was no evidence that the entry was unreasonable, the landlord had permission to enter the premises pursuant to the terms of the lease.²⁷

Permission to enter the property may also derive from a contract with another. For example, in Mountain States Telephone & Telegraph Co. v. Horn Tower Construction Co., the subcontractor defendant graded part of a public street pursuant to a contract with a municipality.²⁸ While doing so, it struck and severed a large, buried conduit and cable belonging to the plaintiff telephone company. While the telephone company was authorized by statute to construct and maintain lines on and under any public highway, its rights were subordinate to the power of the municipal authorities to make reasonable grade changes or improvements. Because the defendant subcontractor was working under a contractor that held the prime contract with the city, it was proceeding under municipal authority and had a valid right in the highway.²⁹

Even where a contract grants permission to enter the property, however, the entry may constitute trespass if it exceeds the scope of the permission. For example, in Montgomery Ward & Co., Inc. v. Andrews, the company argued that it had a contractual and statutory right to enter the premises and remove secured property pursuant to a financing agreement.³⁰ But the court of appeals agreed with the trial court that, even if one assumed there was a right to enter the premises, there was no right to remain on the premises longer than necessary to remove the goods, nor to exercise exclusive possession over the premises.³¹

Another source of permission or consent is a statutory right to enter. For example, in Visintainer Sheep Co. v. Centennial Gold Corp., the defendant was a mineral prospector that held mineral patents from the federal government.³² The plaintiff was a ranch that held approximately 5,000 acres of land also granted by federal patents...