Chapter 42 - § 42.1 • DEFINITION

• Jurisdiction: Colorado

§ 42.1 • DEFINITION

The right to exclude has, historically, been a foundational principle of real property law.¹ Writing in the 1760s, William Blackstone lauded the right to exclude:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.²

The tort of trespass developed through the common law as a mechanism to enforce the right to exclude.³ It remains an often-used claim in Colorado courts.

In Colorado, a trespass⁴ is any entry on, under, or above the surface of another's property without permission or invitation from the person lawfully entitled to its possession.⁵ Unlike negligence, trespass does not require proof of a legal duty or an applicable standard of care, but simply requires physical intrusion on the property of another without the permission of the person lawfully entitled to its possession.⁶

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Notes:

^[1] See Thomas W. Merrill, "Property and the Right to Exclude," 77 Neb. L. Rev. 730, 754-55 (1998).

^[2] Id. at 735.

^[3] See F.W. Maitland, The Forms of Action at Common Law (Cambridge: Cambridge Univ. Press 1936) at 39-40.

^[4] "Trespass" can be a broad label. A number of niche "trespass" torts are supported by Colorado law, but beyond the scope of this chapter. There is trespass to chattels, which allows damages for unjustified and intentional interference with the possession or physical condition of a chattel in the possession of another. See, e.g., Mountain States Tel. & Tel. Co. v. Horn Tower Constr. Co., 363 P.2d 175, 177-78 (Colo. 1961); US Fax Law Ctr., Inc. v. iHire, Inc., 374 F. Supp. 2d 924, 928 (D. Colo. 2005). There is also geophysical trespass, which allows compensatory damages for geophysical information that is obtained without the owner's consent. See, e.g., Mallon Oil Co. v. Bowen/Edwards Assoc., Inc., 965 P.2d 105, 110 (Colo. 1998); Grynberg v. Northglenn, 739 P.2d 230, 236-37 (Colo. 1987).

^[5] Denver & R. G. W. R. Co. v. Forster, 773 P.2d 612, 614 (Colo. App. 1989).

^[6] Lawrence v. Buena...