Copyright 1965, American Law Institute
§ 217 WAYS OF COMMITTING TRESPASS TO CHATTEL
A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of
COMMENTS & ILLUSTRATIONS: Comment:
a. This Section sets forth the ways in which a trespass may be committed. It does not purport to state the circumstances or conditions under which a trespass makes the actor liable. These are set forth in §§ 218-220.
As to what constitutes a dispossession, see § 221. As to liability for a trespass which is a dispossession, see § 222.
A trespass, though not actionable under the rule stated in §§ 218-220, may nevertheless be important in the determination of the legal relations of the parties. Thus, the fact that one person is committing a trespass to another's chattel, while it may not be actionable because it does no harm to the chattel or to any other legally protected interest of the possessor, affords the possessor a privilege to use force to defend his interest in its exclusive possession. (See § 77.) So too, the fact that one person is a trespasser is important in determining the duty of care owing to him by the possessor of the chattel. (Compare § 333.)
b. Necessity of intent. Under early common law pleading, the form of action for trespass to a chattel would lie for any direct and immediate interference with the chattel, whether the trespass was intentional, or negligent, or even accidental. With the passage of time and the abolition of the common law forms of action in many states, and their modification in others, the word "trespass," so far as it applied to interference with chattels, has come to be limited to intentional interferences. Some vestiges of the earlier usage still remain in some jurisdictions, where it is possible to speak of a negligent "trespass" to a chattel. Even in such jurisdictions, however, such "trespasses" are governed by the ordinary rules of negligence actions.
This Section follows the commonly accepted terminology, by which there can be no unintended "trespass" to a chattel. Under the rules stated in Chapter 12 of this Restatement, the actor may be subject to liability for harm resulting from a negligent interference with a chattel. Such liability is dealt with as in other cases of negligence, in which the word "trespass" usually is not even mentioned. Under the rules stated in Chapters 20 and 21, there may also be liability for harm to a chattel resulting from strict liability, without either intent or negligence. Again any such liability is nearly always rested upon the nature of the actor's conduct itself, without any reference to "trespass."
c. Character of intent necessary. The intention required to make an actor liable for trespass to a chattel is similar to that necessary to make one liable for an invasion of another's interest in bodily security, in freedom from an offensive contact, or confinement. (See § 8 A and § 13, Comment c.) Such an intention is present when an act is done for the purpose of using or otherwise intermeddling with a chattel or with knowledge that such an intermeddling will, to a substantial certainty, result from the act. It is not necessary that the actor should know or have reason to know that such intermeddling is a violation of the possessory rights of another. Thus, it is immaterial that the actor intermeddles with the chattel under a mistake of law or fact which has led him to believe that he is the possessor of it or that the possessor has consented to his dealing with it. (See § 244.) So too, a mistake of law or fact which leads him to believe even upon reasonable grounds that he is privileged to meddle with the chattel without the consent of the possessor does not prevent his act from being a trespass if the privilege is one which does not depend upon his reasonable belief, as where he acts to abate a private nuisance. (See § 244, Comment c.) On the other hand, the greater number of privileges require only the actor's reasonable belief that the necessary facts exist. In such cases, a mistake as to the existence of these facts does not destroy the privilege. Privilege is then based not on the facts but on the belief.
d. Direct and indirect interference. Under strict common law pleading, the action of trespass did not lie for harm caused to a chattel unless the intermeddling was the direct and immediate result of some act done by the actor. There was, however, liability in an action on the case for harm intentionally, though indirectly, caused by the actor's misconduct, whether of act or omission. The rules stated in this Chapter set forth the conditions necessary to liability, and do not purport to state the circumstances under which at common law the action of trespass or the action of trespass on the case was the appropriate procedure. Therefore, the rule stated in this Section is applicable irrespective of whether the intermeddling was the direct or indirect result of an act done by the actor, provided that his misconduct was the legal cause of the harm. (See § 870.)
e. Physical contact with chattel. "Intermeddling" means intentionally bringing about a physical contact with the chattel. The actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another, as when he beats another's horse or dog, or by intentionally directing an object or missile against it, as when the actor throws a stone at another's automobile or intentionally drives his own car against it. So too, a trespass may be committed by causing a third person through duress or fraud to intermeddle with another's chattel. An actor may also commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object, as when a herd of sheep is deliberately driven or frightened down a declivity. If such intermeddling with another's chattel is done without his consent and without any other privilege, the actor is subject to liability for harm thus caused to the chattel under the rules stated in §§ 218-220.
f. Persistent contact. The actor may commit a new trespass by continuing an intermeddling which he has already begun, with or without the consent of the person in possession. Such intermeddling may persist after the other's consent, originally given, has been terminated. So too, an intermeddling may persist after a privilege conferred by law, irrespective of the possessor's consent, has been terminated by the accomplishment of the purpose for which the privilege was allowed. On the other hand, an intermeddling unprivileged by the other's consent or otherwise may be a continuous one, in which case the persistence is important in determining the operation of the statute of limitations, which may have run against the original intermeddling but not as against its subsequent continuance.
g. Action at common law. Although the rules of common
law pleading did not permit an action of trespass against one who tortiously
remained in contact with a chattel if his original contact with it had
been made pursuant to the possessor's consent, he was liable to the possessor
of the chattel or to one entitled to its immediate possession in an action
on the case for any harm thus caused to the chattel. Such conduct is treated
in the Restatement of this Subject as a trespass, since the abolition of
the forms of action has very largely done away with the distinction, and
even where vestiges of it remain it is one of procedure rather than substance.
REPORTERS NOTES: The first Restatement has been changed by including dispossession in this Section, in order to make it complete. The substance of Comment b, and Comments c and d, have been moved forward from § 218, where they formerly appeared as Comments a, b and c.