Chapter 5 - § 5.4 • TRESPASS AND NUISANCE

• Jurisdiction: Colorado

§ 5.4 • TRESPASS AND NUISANCE

Sometimes, trespass and nuisance claims may arise with regard to damage to homes. For example, lateral support may be removed by a neighbor adjacent to a home, causing structural distress. Or, a neighbor may construct berms on his or her property that periodically divert water into the basement of another, undermining the foundational soils.

Cobai v. Young held that snow sliding from one homeowner's roof onto a neighboring homeowner's roof was a trespass because the improvement constructed by the first homeowner became an instrument that propagated a damaging force.⁵⁴⁸ A landowner has been permitted to recover in trespass due to an adjacent landowner's changing his or her drainage pattern, causing damage to the first landowner's property.⁵⁴⁹

The elements of the tort of trespass consist of the physical intrusion upon property of another without the permission of the person lawfully entitled to possession of the real estate. Thus, unlike a negligence claim, a trespass claim does not require a plaintiff to prove the existence of a legal duty and present evidence of an applicable standard of care.⁵⁵⁰ While a trespass is presumptively an intentional act, "it is not necessary that the actor actually intends to commit the tort of trespass."⁵⁵¹ At a minimum, however, the alleged trespasser must intentionally enter land possessed by another, or cause something else to enter the land, such as by placing a thing either on or beneath the surface of the land.⁵⁵²

"A landowner who sets in motion a force which, in the usual course of events, will damage property of another is guilty of a trespass on such property,"⁵⁵³ although some suggest that the conduct must be done with the knowledge that it is substantially certain to result in the entry of foreign matter on the other property.⁵⁵⁴ To establish trespass based on entry of a foreign substance onto land, a plaintiff must prove that the trespasser intentionally committed some act, and also that the trespasser knew or should have known that the act would, in the usual course of events, damage the plaintiff's land, or, with substantial certainty, would result in the introduction of that substance onto the plaintiff's land.⁵⁵⁵

In one case, the Colorado Supreme Court held that a geologist did not commit geophysical trespass when he shared legally obtained information with his employer, a prospective purchaser, regarding the level of coal bed methane gas reserves on certain land for sale.⁵⁵⁶ In another case, the defendant homeowners' association moved an underground pipeline from its historical easement on the plaintiff's property; then it began to leak, damaging the plaintiff's home.⁵⁵⁷ The court Colorado Court of Appeals held, (1) the homeowner had a continuing trespass claim, and that each day the pipleline remained on the homeowner's property causing injury a new cause of action arose, and the claim did not accrue until the trespass stopped; (2) the pipeline was not a "socially beneficial structure" so as to except it from the continuing trespass rule because the defendant did not have "lawful authority" to construct the pipeline outside the easement; (3) liability may be determined pro rata in a trespass action; and (4) the defendant could assert an "act of God" defense based on natural subsidence.⁵⁵⁸

In Hoery v. United States, the Colorado Supreme Court noted that the "typical trespass or nuisance is complete when it is committed; the cause of action accrues, and the statute of limitations beings to run at that time."⁵⁵⁹ But in some cases, such as where the "defendant erects a structure or places something on or underneath the plaintiff's land, the defendant's invasion continues if he fails to stop the invasion and to remove the harmful condition."...