Copyright 1965, American Law Institute
§ 158 LIABILITY FOR INTENTIONAL INTRUSIONS ON LAND
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a
duty to remove.
COMMENTS & ILLUSTRATIONS: Comment:
a. As to the distinction between trespass and nuisance, see the Scope and Introductory Note to Chapter 40.
b. Meaning of "enters land." Unless the context otherwise indicates, the phrase "enters land" is for convenience used throughout the Restatement of this Subject to include, not only coming upon land, but also remaining on it, and, in addition, to include the presence upon the land of a third person or thing which the actor has caused to be or to remain there.
c. Meaning of "intrusion." The word "intrusion" is used throughout the Restatement of this Subject to denote the fact that the possessor's interest in the exclusive possession of his land has been invaded by the presence of a person or thing upon it without the possessor's consent. It carries no implication that there is or is not some privilege derived otherwise than from the actor's consent which may prevent the intruder from becoming liable as a trespasser. The word "intrusion," therefore, describes a fact situation only. Whether the intruder is a trespasser and liable as such to the possessor depends upon the existence or non-existence of a law-given, as contrasted with a consensual, privilege. If the possessor of land gives a consent to the actor's presence upon only a particular part of his land, the actor's intentional entry upon any other part of the land is an intrusion, and, if unprivileged, is a trespass.
d. The word "harm" is used in the sense in which it is defined in § 7, Comment a, and therefore does not include a materially harmless invasion of the interest of the possessor in the exclusive possession of his land. (See § 163.)
e. Conduct which would otherwise constitute a trespass is not a trespass if it is privileged. Such a privilege may be derived from the consent of the possessor (see §§ 167-175), or may be given by law because of the purpose for which the actor acts or refrains from acting (see §§ 176-211).
f. Tort liability is never imposed upon one who has neither done an act nor failed to perform a duty. Therefore, one whose presence on the land is not caused by any act of his own or by a failure on his part to perform a duty is not a trespasser.
1. A, against B's will, forcibly carries B upon the land of C. A is a trespasser; B is not.
2. A tornado lifts A's properly constructed house from A's land and deposits it on B's land. This is not a trespass.
g. A trespass on land may be committed by an intrusion upon the surface of the land or beneath or above the surface. (See § 159.)
Comment on Clause (a):
h. Personal entry by the actor. A trespass by way of an entry by the actor in person may be a mere momentary invasion, as where one walks across another's field or flies in an airplane over another's house close to the roof, or it may be an invasion which continues for a more or less protracted period, as where a camper pitches his tent on another's meadow, or where one occupies a building which is on another's land.
i. Causing entry of a thing. The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land or in the air space above it. Thus, in the absence of the possessor's consent or other privilege to do so, it is an actionable trespass to throw rubbish on another's land, even though he himself uses it as a dump heap, or to fire projectiles or to fly an advertising kite or balloon through the air above it, even though no harm is done to the land or to the possessor's enjoyment of it. In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter. Thus one who so piles sand close to his boundary that by force of gravity alone it slides down onto his neighbor's land, or who so builds an embankment that during ordinary rainfalls the dirt from it is washed upon adjacent lands, becomes a trespasser on the other's land.
3. A intentionally throws a pail of water against a wall of B's house. A is a trespasser.
4. A intentionally drives a stray horse from his pasture into the pasture of his neighbor, B. A is a trespasser.
5. A erects a dam across a stream, thereby intentionally causing the water to back up and flood the land of B, an upper riparian proprietor. A is a trespasser.
6. A, on a public lake, intentionally discharges his shotgun over a point of land in B's possession, near the surface. The shot falls into the water on the other side. A is a trespasser.
j. Causing entry of a third person. If, by any act of his, the actor intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person's entry if it be a trespass. This is an application of the general principle that one who intentionally causes another to do an act is under the same liability as though he himself does the act in question. So too, one who by physical duress causes a third person to go upon the land of another or who carries the third person there against his will is liable as a trespasser, although the third person may not be liable. (See Comment e and Illustration 1.)
k. If the actor, entering in person, brings with him third persons or things, the presence of such third persons or things may be treated as an aggravation of the trespass committed by the actor's personal entry.
Comment on Clause (b):
l. Failure to leave land. A trespass on land may be by a failure of the actor to leave the land of which the other is in possession, or a part of such land. If the possessor of the land has consented to the actor's presence on the land, his failure to leave after the expiration of the license is a trespass (see §§ 171 and 176) unless his continued presence on the land is otherwise privileged, or unless it amounts to a disseisin (see § 162, Comment c). So too, if the actor has intruded in the exercise of a privilege conferred by law irrespective of the possessor's consent, he becomes a trespasser by remaining upon the land after the purpose for which the privilege has been given has been accomplished. Again, one who is forcibly carried onto the land by third persons becomes a trespasser if, after he regains his freedom, he fails to leave the land with reasonable expedition.
If the actor's entry was unprivileged, his remaining on the land may at the option of the possessor be treated as an aggravation of the original trespass of entering the land or, unless it amounts to a disseisin, as a continuing trespass which confers on the possessor a series of rights of action, unless and until the actor by his continued presence on the land disseises its possessor or acquires an easement in it.
m. Continuing trespass. An unprivileged remaining on land in another's possession is a continuing trespass for the entire time during which the actor wrongfully remains. Such a continuing trespass is to be distinguished from a series of separate trespasses on land, as where A habitually crosses B's field without a privilege to do so. Although the legal consequences of the two are much alike, there are certain differences, as where a license is terminated by the death of a licensor without the knowledge of his licensee. (Compare § 160, Comment f.)
As to the circumstances under which the rule of continuing trespass is of peculiar importance, see § 160, Comments h and i, which Comments so far as they are pertinent are applicable here. If one, without a privilege to do so, enters or remains on land and at that time or thereafter disseises the possessor, the actor's conduct in remaining on the land after such disseisin is not a continuing trespass. (See § 162, Comment c.)
Comment on Clause (c):
n. See §§ 160 and 161 and the Comments thereon.
REPORTERS NOTES: This Section has been changed from the first Restatement by condensing it to conform to the shorter style of later Sections. No change in substance is intended.
Illustration 1 is taken from Smith v. Stone, Style 65, 82 Eng. Rep. 533 (1647). Compare Feiges v. Racine Dry Goods Co., 231 Wis. 270, 285 N.W. 799, 122 A.L.R. 272 (1939).
Illustration 2 is based on Livezey v. City of Philadelphia, 64 Pa. 106, 3 Am. Rep. 578 (1870), and Carter v. Thurston, 58 N.H. 104, 42 Am. Rep. 584 (1877). See also Hot Springs Lumber & Mfg. Co. v. Revercomb, 106 Va. 176, 55 S.E. 580, 9 L.R.A. N.S. 894 (1906).
Illustration 3 is taken from Prewitt v. Clayton, 5 T.B. Mon. (Ky.) 4 (1827). Cf. Wheeler v. Norton, 92 App. Div. 368, 86 N.Y.S. 1095 (1904).
Illustration 5 is based on Scheurich v. Empire Dist. Elec. Co., 188 S.W. 114 (Mo. 1916); Judd v. Blakeman, 175 Ky. 848, 195 S.W. 119 (1917); Walter v. Wagner, 225 Ky. 255, 8 S.W.2d 421 (1928); Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298, 102 Am. St. Rep. 881 (1904); Butala v. Union Elec. Co., 70 Mont. 580, 226 P. 899 (1924); Norwood v. Eastern Oregon Land Co., 139 Ore. 25, 5 P.2d 1057 (1931), modified, 7 P.2d 996 (1932); Fleming v. Lockwood, 36 Mont. 384, 92 P. 962, 14 L.R.A. N.S. 628, 122 Am. St. Rep. 375, 13 Ann. Cas. 263 (1907).
Illustration 6 is based on Whittaker v. Stangvick, 100 Minn. 386, 111 N.W. 295, 10 L.R.A. N.S. 921, 117 Am. St. Rep. 703, 10 Ann. Cas. 528 (1907).
See also the following cases of causing a thing to go upon the surface of another's land: Hendershott v. City of Ottumwa, 46 Iowa 658, 26 Am. Rep. 182 (1877); Harford County v. Wise, 71 Md. 43, 18 A. 31 (1889); Piedmont & C.R. Co. v. McKenzie, 75 Md. 458, 24 A. 157 (1892); Gray v. Tobin, 259 Mass. 113, 156 N.E. 30 (1927); Hennessy v. City of Boston, 265 Mass. 559, 164 N.E. 470, 62 A.L.R. 780 (1929); Clark v. Wiles, 54 Mich. 323, 20 N.W. 63 (1884); Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158 (1952); Ellis v. Blue Mountain Forest Ass'n., 69 N.H. 385, 41 A. 856, 42 L.R.A. 570 (1898); Hutchinson v. Schimmelfeder, 40 Pa. 396, 80 Am. Dec. 582 (1861); Williams v. Columbus Prod. Co., 80 W.Va. 683, 93 S.E. 809, L.R.A. 1918B, 179 (1917).
Comment j: The Comment is supported by Hendrix v. Black, 132 Ark. 473, 201 S.W. 283, L.R.A. 1918D, 217 (1918); Powell v. Harris, 39 Ga. App. 295, 147 S.E. 189 (1929); Murrell v. Goodwill, 159 La. 1057, 106 So. 564 (1925); Sperry v. Hurd, 267 Mo. 628, 185 S.W. 170 (1916); Vandenburgh v. Truax, 4 Denio (N.Y.) 464, 47 Am. Dec. 268 (1847); Wetzel v. Satterwhite, 59 Tex. Civ. App. 1, 125 S.W. 93 (1910).
Compare cases where the actor has induced another to enter by false representations, as for example by a grant of the land or of a right to enter: Donovan v. Consolidated Coal Co., 187 Ill. 28, 58 N.E. 290, 79 Am. St. Rep. 206 (1900); State v. Smith, 78 Me. 260, 4 A. 412, 57 Am. Rep. 802 (1886); Sanborn v. Sturtevant, 17 Minn. 200 (1871); Kirby Lumber Co. v. Karpel, 233 F.2d 373 (5 Cir 1956); Darden v. McMillian, 93 Ga. App. 892, 93 S.E.2d 169 (1956). See also Castleberry v. Mack, 167 S.W.2d 489 (Ark. 1943); State v. Lasiter, 352 S.W.2d 915 (Tex. Civ. App. 1961), error dismissed.
Comment l: Under strict common law pleading redress for a wrongful failure to leave land would probably have been by action on the case. Under modern systems of pleading, where the distinction between trespass and case is largely eliminated, there are a number of cases in which the liability for trespass has been found. See, for example, Snedecor v. Pope, 143 Ala. 275, 39 So. 318 (1904); New Morgan C.B. & L. Ass'n v. Plemmons, 210 Ala. 286, 98 So. 12 (1923); Mackenzie v. Minis, 132 Ga. 323, 63 S.E. 900, 23 L.R.A. N.S. 1003, 16 Ann. Cas. 723 (1909); Ragain v. Stout, 182 Ill. 645, 55 N.E. 529 (1899); Concanan v. Boynton, 76 Iowa 543, 41 N.W. 213 (1889); Davis v. Stone, 120 Mass. 228 (1876); Mitchell v. Mitchell, 54 Minn. 301, 55 N.W. 1134 (1893); Rager v. McCloskey, 305 N.Y. 75, 111 N.E.2d 214 (1953), motion denied, 305 N.Y. 924, 114 N.E.2d 476; Wolf v. Buffalo House Wrecking Co., 10 Pa. D. & C. 350, 9 Erie Co. L.J. 127 (1928); Warner v. Hoisington, 42 Vt. 94 (1869); Case v. Knight, 129 Wash. 570, 225 P. 645 (1924); Brabazon v. Joannes Bros. Co., 231 Wis. 426, 286 N.W. 21 (1939).