Criminal Trespassing
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Trespass is an area of
tort law A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with crime ...
broadly divided into three groups: trespass to the person (see below),
trespass to chattels Trespass to chattels, also called trespass to personalty or trespass to personal property, is a tort whereby the infringing party has intentionally (or, in Australia, negligently) interfered with another person's lawful possession of a chattel ...
, and
trespass to land Trespass to land, also called trespass to realty or trespass to real property, or sometimes simply trespass, is a common law tort or a crime that is committed when an individual or the object of an individual intentionally (or, in Australia, n ...
. Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding, mayhem (or maiming), and false imprisonment. Through the evolution of the common law in various jurisdictions, and the codification of common law torts, most jurisdictions now broadly recognize three trespasses to the person: assault, which is "any act of such a nature as to excite an apprehension of battery";''Johnson v. Glick'', battery, "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it"; and false imprisonment, the " or of freedom from restraint of movement".''Broughton v. New York'', 37 N.Y.2d 451, 456–7 Trespass to chattel does not require a showing of damages. Simply the "intermeddling with or use of … the personal property" of another gives cause of action for trespass. Since ''
CompuServe Inc. v. Cyber Promotions, Inc. ''CompuServe Inc. v. Cyber Promotions, Inc.'' was a ruling by the United States District Court for the Southern District of Ohio in 1997 that set an early precedent for granting online service providers the right to prevent commercial enterprise ...
'', various courts have applied the principles of trespass to chattel to resolve cases involving unsolicited bulk e-mail and unauthorized server usage.''America Online, Inc. v. IMS'', Trespass to land is today the tort most commonly associated with the term ''trespass''; it takes the form of "wrongful interference with one's possessory rights in ealproperty".''Robert's River Rides v. Steamboat Dev.'', Generally, it is not necessary to prove harm to a possessor's legally protected interest; liability for unintentional trespass varies by jurisdiction. " common law, every unauthorized entry upon the soil of another was a
trespasser In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the ...
"; however, under the tort scheme established by the
Restatement of Torts Restatement may refer to: *Restatements of the Law, published by the American Law Institute as scholarly refinements of black letter law; these include: **Restatement of Contracts, Second, completed by the American Law Institute in 1979 *Restatemen ...
, liability for unintentional intrusions arises only under circumstances evincing negligence or where the intrusion involved a highly dangerous activity.''Loe et ux. v. Lenhard et al.'', In criminal law, trespass is often an element of offences such as
burglary Burglary, also called breaking and entering (B&E) or housebreaking, is a property crime involving the illegal entry into a building or other area without permission, typically with the intention of committing a further criminal offence. Usually ...
. Trespass has also been treated as a
common law offense Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific ...
in some countries.


Trespass to the person

There are three types of trespass, the first of which is trespass to the person. Whether intent is a necessary element of trespass to the person varies by jurisdiction. Under English decision, ''
Letang v Cooper is an English Court of Appeal judgment, by which it was decided that negligently caused personal injury cannot be recovered under the trespass to the person, but the tort of negligence must be tried instead. Facts Mr Cooper (the defendant) ...
'', intent is required to sustain a trespass to the person cause of action; in the absence of intent, negligence is the appropriate tort. In other jurisdictions, gross negligence is sufficient to sustain a trespass to the person, such as when a defendant negligently operates an automobile and strikes the plaintiff with great force. "Intent is to be presumed from the act itself." Generally, and as defined by Goff LJ in ''
Collins v Wilcock ''Collins v Wilcock'' is an appellate case decided in 1984 by a divisional court of the Queen's Bench Division of the High Court of England and Wales. It is concerned with trespass to the person focusing on battery. Coll ...
'', trespass to the person consists of three torts: assault, battery, and false imprisonment.


Assault

In various common law jurisdictions, assault is both a crime and a tort. Generally, a person commits criminal assault if they purposely, knowingly, or recklessly inflict bodily injury upon another; if they negligently inflict bodily injury upon another by means of dangerous weapon; or if through physical menace, they place another in fear of imminent serious bodily injury. A person commits tortious assault when they engage in "any act of such a nature as to excite an apprehension of battery odily injury. In some jurisdictions, there is no requirement that actual physical violence result—simply the "threat of unwanted touching of the victim" suffices to sustain an assault claim. Consequently, in ''
R v Constanza ''R v Constanza''
997 Year 997 ( CMXCVII) was a common year starting on Friday of the Julian calendar. Events By place Japan * 1 February: Empress Teishi gives birth to Princess Shushi - she is the first child of the emperor, but because of the power stru ...
is an English law, English case law, case reaching the Court of Appeal of England and Wales, Court of Appeal and is well-known (amongst other cases) for establishing the legal precedent in English criminal law that assault ...
'', the court found a stalker's threats could constitute assault. Similarly, silence, given certain conditions, may constitute an assault as well. However, in other jurisdictions, simple threats are insufficient; they must be accompanied by an action or condition to trigger a cause of action. Incongruity of a defendant's language and action, or of a plaintiff's perception and reality may vitiate an assault claim. In ''
Tuberville v Savage ''Tuberville v Savage'' (1669) 1 Mod Rep 3; 86 ER 684 is an English decision about the requirements for both the tort of assault (tort), assault and the common law criminal offence of common assault. It involved plaintiff Tuberville versus defenda ...
'', the defendant reached for his sword and told the plaintiff that " it were not assize-time, I would not take such language from you". In its American counterpart, ''Commonwealth v. Eyre'', the defendant shouted " it were not for your gray hairs, I would tear your heart out". In both cases, the courts held that despite a threatening gesture, the plaintiffs were not in immediate danger. The actions must give the plaintiff a reasonable expectation that the defendant is going to use violence; a fist raised before the plaintiff may suffice; the same fist raised behind the window of a police cruiser will not.


Battery

Battery is "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it". The elements of battery common law varies by jurisdiction. In the United States, the American Law Institute's
Restatement of Torts Restatement may refer to: *Restatements of the Law, published by the American Law Institute as scholarly refinements of black letter law; these include: **Restatement of Contracts, Second, completed by the American Law Institute in 1979 *Restatemen ...
provides a general rule to determine liability for battery: Battery torts under Commonwealth precedent are subjected to a four point test to determine liability: # ''Directness''. Is the sequence of events connecting initial conduct and the harmful contact an unbroken series? # ''Intentional act''. Was the harmful contact the conscious object of the defendant? Did the defendant intend to cause the resulting harm? Though the necessity of intent remains an integral part of Commonwealth battery, some Commonwealth jurisdictions have moved toward the American jurisprudence of "substantial certainty".Trinidade, p. 221 If a reasonable person in the defendant's position would apprehend the substantial certainty of the consequences of his actions, whether the defendant intended to inflict the injuries is immaterial. # ''Bodily contact''. Was there active (as opposed to passive) contact between the bodies of the plaintiff and the defendant? # ''Consent''. Did the plaintiff consent to the harmful contact? The onus is on the defendant to establish sufficient and effective consent.


False imprisonment

False imprisonment is defined as " or of freedom from restraint of movement". In some jurisdictions, false imprisonment is a tort of strict liability: no intention on the behalf of the defendant is needed, but others require an intent to cause the confinement. Physical force, however, is not a necessary element, and confinement need not be lengthy; the restraint must be complete,. though the defendant needn't resist. Conveniently, the American Law Institute's Restatement (Second) of Torts distills false imprisonment liability analysis into a four-prong test: # The defendant intends to confine the plaintiff. (This is not necessary in Commonwealth jurisdictions.) # The plaintiff is conscious of the confinement. (Prosser rejects this requirement.) # The plaintiff does not consent to the confinement. # The confinement was not otherwise privileged.


Defenses


Child correction

Depending on the jurisdiction, corporal punishment of children by parents or instructors may be a defense to trespass to the person, so long as the punishment was "reasonably necessary under the circumstances to discipline a child who has misbehaved" and the defendant " prudence and restraint". Unreasonable punishments, such as violently grabbing a student's arm and hair, have no defense. Many jurisdictions, however, limit
corporal punishment A corporal punishment or a physical punishment is a punishment which is intended to cause physical pain to a person. When it is inflicted on Minor (law), minors, especially in home and school settings, its methods may include spanking or Padd ...
to parents, and a few, such as
New Zealand New Zealand () is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and List of islands of New Zealand, over 600 smaller islands. It is the List of isla ...
, have criminalized the practice.


Consent

Perhaps the most common defense for the torts of trespass to the person is that of , literally, "to a willing person, no injury is done", but shortened to "consensual privilege" or "consent". If a plaintiff participates in a sporting activity in which physical contact is ordinary conduct, such as rugby, they are considered to have consented. This is not the case if the physical contact went beyond what could be expected, such as the use of hand gun during a fistfight, as in ''Andrepont v Naquin'', or where the injuries were suffered not from the plaintiff's participation in the sport but inadequate safety measures taken, as in ''Watson v British Boxing Board of Control Ltd''. Where the plaintiff and defendant voluntarily agree to participate in a fight, some jurisdictions will deny relief in civil action, so long as the injuries caused are proportionate: "in an ordinary fight with fists there is no cause of action to either of
he combatants He or HE may refer to: Language * He (letter), the fifth letter of the Semitic abjads * He (pronoun), a pronoun in Modern English * He (kana), one of the Japanese kana (へ in hiragana and ヘ in katakana) * Ge (Cyrillic), a Cyrillic letter cal ...
for any injury suffered". Other jurisdictions refuse to recognize consent as a defense to
mutual combat Mutual combat, a term commonly used in United States courts, occurs when two individuals intentionally and consensually engage in a fair fight, while not hurting bystanders or damaging property. There have been numerous cases where this concept wa ...
and instead provide relief under the doctrine of comparative negligence. Medical care gives rise to many claims of trespass to the person. A physician, "treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient". Should he do so, he commits a trespass to the person and is liable for damages. However, if the plaintiff is informed by a doctor of the broad risks of a medical procedure, there will be no claim under trespass against the person for resulting harm caused; the plaintiff's agreement constitutes
informed consent Informed consent is an applied ethics principle that a person must have sufficient information and understanding before making decisions about accepting risk. Pertinent information may include risks and benefits of treatments, alternative treatme ...
. In those cases where the patient does not possess sufficient mental capacity to consent, doctors must exercise extreme caution. In ''F v West Berkshire Health Authority'', the House of Lords instructed British physicians that, to justify operating upon such an individual, there "(1) must ... be a necessity to act when it is not practicable to communicate with the assisted person ... nd(2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person".


Self-defense / defense of others / defense of property

Self-defense, or non-consensual privilege, is a valid defense to trespasses against the person, assuming that it constituted the use of "
reasonable force The right of self-defense is the right for people as individuals to commit a crime, violent or non-violent, for the purpose of defending their own life (self-defense) and property, or to defend the lives of others, in certain circumstances. F ...
which they honestly and reasonably believe is necessary to protect themselves or someone else, or property". The force used must be proportionate to the threat, as ruled in ''
Cockcroft v Smith ''Cockcroft v Smith'' (1705) 11 Mod 43 is an English tort law case. It concerned the definition of legitimate self defence. Facts Mr. Cockcroft ran his finger towards Mr. Smith's eyes. Mr. Smith bit off part of Mr. Cockcroft's finger. Judgment ...
''.


Trespass to chattels

Trespass to chattels (also known as trespass to goods or trespass to personal property) is defined as "an intentional interference with the possession of personal property...proximately injury".''Thrifty-Tel, Inc., v. Bezenek'', 46 Cal. App. 4th 1559, 1566–7 While originally a remedy for the asportation of personal property, the tort grew to incorporate any interference with the personal property of another. In some jurisdictions, such as the United Kingdom, trespass to chattels has been codified to clearly define the scope of the remedy;Elliott, p. 314 in most jurisdictions, trespass to chattel remains a purely common law remedy, the scope of which varies by jurisdiction. Generally, trespass to chattels possesses three elements: # ''Lack of consent''. The interference with the property must be non-consensual. A claim does not lie if, in acquiring the property, the purchaser consents contractually to certain access by the seller. " use exceeding the consent" authorized by the contract, should it cause harm, gives rise to a cause for action. # ''Actual harm''. The interference with the property must result in actual harm. The threshold for actual harm varies by jurisdiction. In California, for instance, an electronic message may constitute a trespass if the message interferes with the functioning of the computer hardware, but the plaintiff must prove that this interference caused actual hardware damage or actual impaired functioning. # ''Intentionality''. The interference must be intentional. What constitutes intention varies by jurisdiction, however, the Restatement (Second) of Torts indicates that "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", and continues: " 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". Remedies for trespass to chattel include damages, liability for conversion, and injunction, depending on the nature of the interference.Ledgerwood, p. 848


Traditional applications

Trespass to chattels typically applies to tangible property and allows the owner of such property to seek relief when a third party intentionally interferes or intermeddles in the owner's possession of his personal property. "Interference" is often interpreted as the "taking" or "destroying" of goods, but can be as minor as "touching" or "moving" them in the right circumstances. In ''
Kirk v Gregory Kirk is a Scottish and former Northern English word meaning 'church'. The term ''the Kirk'' is often used informally to refer specifically to the Church of Scotland, the Scottish national church that developed from the 16th-century Reformation ...
'', the defendant moved jewelry from one room to another, where it was stolen. The deceased owner's executor successfully sued her for trespass to chattel. Furthermore, personal property, as traditionally construed, includes living objects, except where property interests are restricted by law. Thus animals are personal property, but organs are not.


Modern US applications

In recent years, trespass to chattels has been expanded in the United States to cover
intangible property Intangible property, also known as incorporeal property, is something that a person or corporation can have ownership of and can transfer ownership to another person or corporation, but has no physical substance, for example brand identity or ...
, including combating the proliferation of
unsolicited bulk email Email spam, also referred to as junk email, spam mail, or simply spam, refers to unsolicited messages sent in bulk via email. The term originates from a Monty Python sketch, where the name of a canned meat product, "Spam," is used repetitively, m ...
as well as virtual property interests in online worlds. In the late 1990s, American courts enlarged trespass to chattels, first to include the unauthorized use of long distance telephone lines, and later to include unsolicited bulk email. In 1998, a federal court in Virginia held that the owner of a marketing company committed trespass to chattels against an Internet service provider's computer network by sending 60 million unauthorized email advertisements after being notified that the spam was unauthorized. In ''America Online, Inc. v. LCGM, Inc.'',
AOL AOL (formerly a company known as AOL Inc. and originally known as America Online) is an American web portal and online service provider based in New York City, and a brand marketed by Yahoo! Inc. The service traces its history to an online ...
successfully sued a pornographic website for spamming AOL customers and forging the AOL domain name to trick customers. By the new millennium, trespass to chattel expanded beyond bulk email. In ''eBay v. Bidder's Edge'', a California court ruled that Bidder's Edge's use of a
web crawler Web crawler, sometimes called a spider or spiderbot and often shortened to crawler, is an Internet bot that systematically browses the World Wide Web and that is typically operated by search engines for the purpose of Web indexing (''web spider ...
to cull auction information from eBay's website constituted trespass to chattel and further, that a plaintiff in such a suit need not prove that the interference was substantial. A number of similar cases followed until, in '' Intel v. Hamidi'', the
Supreme Court of California The Supreme Court of California is the Supreme court, highest and final court of appeals in the judiciary of California, courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly ...
held that a plaintiff must demonstrate either actual interference with the physical functionality of the computer system or the likelihood that such interference would occur in the future. The ''Hamidi'' decision quickly found acceptance at both the federal and state level. To date, no United States court has identified property rights in items acquired in virtual worlds; heretofore, virtual world providers have relied on
end-user license agreement An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user. The practice of selling licenses to rather than copies of software predates the recognition of software copyright, which has ...
s to govern user behavior. Nevertheless, as virtual worlds grow, incidents of property interference, a form of "
griefing A griefer or bad-faith player is a player in a multiplayer video game who deliberately annoys, disrupts, or trolls others in ways that are not part of the intended gameplay. Griefing is often accomplished by killing players for sheer fun, destr ...
", may make trespass to chattel an attractive remedy for deleted, stolen, or corrupted virtual property.


Trespass to land

Trespass to land involves the "wrongful interference with one's possessory rights in ealproperty". It is not necessary to prove that harm was suffered to bring a claim, and is instead actionable ''per se''. While most trespasses to land are intentional, British courts have held liability holds for trespass committed negligently. Similarly, some American courts will find liability for unintentional intrusions only where such intrusions arise under circumstances evincing negligence or involve a highly dangerous activity. Exceptions exist for entering land adjoining a road unintentionally (such as in a car accident), as in ''
River Wear Commissioners v Adamson A river is a natural stream of fresh water that flows on land or inside caves towards another body of water at a lower elevation, such as an ocean, lake, or another river. A river may run dry before reaching the end of its course if it run ...
''. In some jurisdictions, trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass.


Subsoil and airspace

Aside from the surface, land includes the
subsoil Subsoil is the layer of soil under the topsoil on the surface of the ground. Like topsoil, it is composed of a variable mixture of small particles such as sand, silt and clay, but with a much lower percentage of organic matter and humus. The su ...
, airspace and anything permanently attached to the land, such as houses, and other infrastructure, this is literally explained by the legal maxim
quicquid plantatur solo, solo cedit ''Quicquid plantatur solo, solo cedit'' (Latin, "whatever is affixed to the soil belongs to the soil") is a legal Latin A number of Latin terms are used in law, legal terminology and legal maxims. This is a partial list of these terms, which a ...
.


Subsoil

William Blackstone's ''
Commentaries on the Laws of England The ''Commentaries on the Laws of England'' (commonly, but informally known as ''Blackstone's Commentaries'') are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarend ...
'' articulated the common law principle , translating from Latin as "for whoever owns the soil, it is theirs up to Heaven and down to Hell". In modern times, courts have limited the right of absolute dominion over the subsurface. For instance, drilling a directional well that bottoms out beneath another's property to access oil and gas reserves is trespass, but a subsurface invasion by
hydraulic fracturing Fracking (also known as hydraulic fracturing, fracing, hydrofracturing, or hydrofracking) is a well stimulation technique involving the fracturing of Formation (geology), formations in bedrock by a pressurized liquid. The process involves the ...
is not. Where
mineral rights Mineral rights are property rights to exploit an area for the minerals it harbors. Mineral rights can be separate from property ownership (see Split estate). Mineral rights can refer to sedentary minerals that do not move below the Earth's surfa ...
are severed from surface ownership, it is trespass to use another's surface to assist in mining the minerals beneath that individual's property, but, where an emergency responder accesses the subsurface following a blowout and fire, no trespass lies. Even the possible subsurface migration of toxic waste stored underground is not trespass, except where the plaintiff can demonstrate that the actions "actually interfere with the wner'sreasonable and foreseeable use of the subsurface", or, in some jurisdictions, that the subsurface trespasser knows with "substantial certainty" that the toxic liquids will migrate to the neighboring land.


Airspace

Domain of landowners over their airspace is limited to the lower atmosphere. In the United States, ''
United States v. Causby ''United States v. Causby'', 328 U.S. 256 (1946), was a landmark United States Supreme Court decision related to ownership of airspace above private property. The United States government claimed a public right to fly over Thomas Lee Causby's farm ...
'' (1946) limited landowner domain to the space below , Justice
William O. Douglas William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1939 to 1975. Douglas was known for his strong progressive and civil libertari ...
reasoned that, should it find in the landowners' favor and accept the "ancient doctrine that at common law ownership of land to the periphery of the universe—", "every transcontinental flight would subject the operator to countless trespass suits". Citizens have a right to fly in the "navigable airspace". Thirty-one years later, in '' Bernstein of Leigh v Skyviews & General Ltd'', an
English court The Courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales. Except in constitutional matters, ...
reached a similar conclusion, finding an action for trespass failed because the violation of airspace took place several hundred meters above the land: "If the Latin maxim were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden."


Interference

The main element of the tort is "interference". This must be both direct and physical, with indirect interference instead being covered by
negligence Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...
or
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means something which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "com ...
. "Interference" covers any physical entry to land, as well as the abuse of a right of entry, when a person who has the right to enter the land does something not covered by the permission. If the person has the right to enter the land but remains after this right expires, this is also trespass. It is also a trespass to throw anything on the land. For the purposes of trespass, the person who owns the land on which a road rests is treated as the owner; it is not, however, a trespass to use that road if the road is constructed with a public use
easement An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...
, or if, by owner acquiescence or through
adverse possession Adverse possession in common law, and the related civil law (legal system), civil law concept of usucaption (also ''acquisitive prescription'' or ''prescriptive acquisition''), are legal mechanisms under which a person who does not have title (p ...
, the road has undergone a common law dedication to the public. In ''
Hickman v Maisey Hickman or Hickmann may refer to: People * Hickman (surname), notable people with the surname Hickman or Hickmann * Hickman Ewing, American attorney * Hickman Price (1911–1989), assistant secretary in the United States Department of Commerce * ...
'' and ''
Adams v. Rivers Adams may refer to: * For persons, see Adams (surname) Places United States *Adams, California *Adams, California, former name of Corte Madera, California * Adams, Decatur County, Indiana *Adams, Kentucky *Adams, Massachusetts, a New England to ...
'', the courts established that any use of a road that went beyond using it for its normal purpose could constitute a trespass: " a land owner's property rights may be to the right of mere passage, the owner of the soil is still absolute master."''Berns v. Doan'', (internal quotes omitted) British courts have broadened the rights encompassed by public easements in recent years. In '' DPP v Jones'', the court ruled that "the public highway is a public place which the public may enjoy for any reasonable purpose, providing that the activity in question does not amount to a public or private nuisance and does not obstruct the highway by reasonably impeding the primary right of the public to pass and repass; within these qualifications there is a public right of peaceful assembly on the highway." The principles established in ''Adams'' remain valid in American law.


Defenses

There are several defenses to trespass to land; license, justification by law, necessity and . License is express or implied permission, given by the possessor of land, to be on that land. These licenses are generally revocable unless there is contractual agreement preventing them being revoked. Once revoked, a license-holder becomes a trespasser if they remain on the land. Justification by law refers to those situations in which there is statutory authority permitting a person to go onto land, such as the England and Wales'
Police and Criminal Evidence Act 1984 The Police and Criminal Evidence Act 1984 (c. 60) (PACE) is an act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise of t ...
, which allows the police to enter land for the purposes of carrying out an arrest, or the California state constitution, which permits protests on grocery stores and strip malls, despite their presenting a general nuisance to store owners and patrons. is where the defendant can prove that the land is not possessed by the plaintiff, but by a third party, as in ''
Doe d Carter v Barnard Doe, DoE, or DOE may refer to: Arts, entertainment and media * Doe (band), a British indie rock band * "Doe", a song by the Breeders from the 1990 album ''Pod (The Breeders album), Pod'' * ''Defying Ocean's End'', a 2004 book and global agenda fo ...
''. This defense is unavailable if the plaintiff is a tenant and the defendant a landlord who had no right to give the plaintiff his lease (e.g., an illegal apartment rental, an unauthorized sublet, etc.). Necessity is the situation in which it is vital to commit the trespass; in ''
Esso Petroleum Co v Southport Corporation Esso () is a trade name, trading name for ExxonMobil. Originally, the name was primarily used by its predecessor Standard Oil of New Jersey after the breakup of the original Standard Oil company in 1911. The company adopted the name "Esso" (fro ...
'', the captain of a ship committed trespass by allowing oil to flood a shoreline. This was necessary to protect his ship and crew, however, and the defense of necessity was accepted. Necessity does not, however, permit a defendant to enter another's property when alternative, though less attractive, courses of action exist.''Berns'', at 505


See also

*
Appropriation (economics) Appropriation is a process by which previously unowned natural resources, particularly land, become the property of a person or group of persons. The term is widely used in economics in this sense. In certain cases, it proceeds under very specifi ...
*
Trespass on the case The writs of trespass and trespass on the case are the two catchall torts from English common law, the former involving trespass against the person, the latter involving trespass against anything else which may be actionable. The writ is also known ...
*
Trespass in English law Trespass in English law is an area of English tort law, tort law broadly divided into three groups: trespass to the person, trespass to goods, and trespass to land. Trespass to the person comes in three variants: assault, which is "to act in s ...
*
Castle doctrine A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person's abode or any legally occupied place (for example, an automobile or a home) as a place in which that person has protection ...
*
Countryside and Rights of Way Act 2000 The Countryside and Rights of Way Act 2000 (c. 37), also known as the CRoW Act and "Right to Roam" Act, is a United Kingdom Act of Parliament affecting England and Wales which came into force on 30 November 2000. Right to roam The Act impleme ...
(UK) *
Forced entry Forcible entry is "the unlawful taking of possession of real property by force or threats of force or unlawful entry into or onto another's property, especially when accompanied by force". The term is also sometimes used for entry by military, pol ...
*
Freedom to roam The freedom to roam, or everyone's right, every person's right or everyman's right, is the general public's right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the ...
*
Easement An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...
*
Structural encroachment A structural encroachment is a concept in real property law, in which a piece of real property projects from one property over or under the property line of another landowner's premises. The actual structure that encroaches might be a tree, bush ...
*
Rights of way in England and Wales In England and Wales, excluding the 12 Inner London London boroughs, boroughs and the City of London, the Right-of-way (property access), right of way is a legally protected right of the public to pass and re-pass on specific paths. Private ri ...
*
Rights of way in Scotland A right of way (also right-of-way) is a specific route that people, animals, vehicles, watercraft, or utility lines travel, or the legal status that gives them the right to do so. Rights-of-way in the physical sense include controlled-access h ...
*
Property is theft! Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...


References


Bibliography


Books

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