FORGIVE US OUR TRESPASSES
I found myself wondering the other day, as I mentioned an allegation of trespass in a post, whether we talk about basic garden-variety trespass often enough. So here we are.
The United States inherited the law of trespass from medieval England. At common law, a trespass upon land occurred when a person, acting without authority, physically invades or unlawfully enters the premises of another, and damages result (even though the damages may be insignificant). The entry may be intentional or negligent. Just about every entry onto the land of another that occurs happens due to negligence, because it requires remarkably little negligence to accomplish a trespass.
I watched a lot of football this past weekend, starting with high school football on Friday night, as my beloved Norwalk Truckers get blanked by arch-rival Bellevue, 14-0. Saturday night, my bride of 42 years and I watched our Ohio State Buckeyes – we went to OSU, so we have a right to be Scarlet-and-Gray fans – lay a 59-7 hurt on the aptly-named Akron Zips. Yesterday, I was shocked, shocked I tell you, to watch the Cleveland Brown thoroughly pound the hapless Chicago Bears, 26-6. Mighty fine weekend, I’d say.
But because I have football on my mind, let me liken trespass to catching a pass on the inbounds white line. If you deliberately run out of bounds and then catch the pass, the pass is no good. Call it trespass. If you catch one right on the line, and your foot accidentally steps on the white line as you catch it, the pass is no good. It’s still trespass.
If you catch a pass in bounds, and while you’re in the air catching it, a defender wraps you up and carries you out of bounds, however, the pass is complete. It’s not a trespass.
In other words, you can intentionally trespass. You can negligently trespass. But if your body is deposited on someone else’s land through involuntary means, it’s not a trespass.
Trespass is most commonly asserted by people who have lost trees to a misguided tree cutter taking timber on the wrong side of an unclear or misunderstood property line. It has also been applied where people took self-help a little too far, and went onto neighboring property to aggressively trim a problem tree. Trespass has been found where people mistakenly believed they owned the property they had occupied, where a party has negligently caused livestock or water to enter another’s land, and where someone was on the property with permission to cut down certain trees, but cut down trees he had been told to avoid.
Muir v. Ruder, 945 S.W.2d 33 (Court of Appeals of Missouri, Eastern District, 4th Div. 1997). Jim Ruder, a landscaper, agreed to buy trees on the Muirs’ property. Ruder was to remove the trees, and pay $6.00 a tree. He also agreed to transplant 120 trees for Muir, and repair any ruts or holes created in the process. The deal went south, as such deals sometimes do, and the Muirs sued. They said Ruder had committed trespass by breaking the contract and then entering the property and unlawfully removed about 220 trees. Ruder said he only took 130 trees, and the rest were stolen by persons unknown. He admitted he didn’t paid for any trees, fill in ruts or holes, or transplant any trees. He claimed he told the Muirs he didn’t have the right equipment to move the specific trees they wanted transplanted.
The trial court agreed that Ruder had trespassed, and awarded the Muirs $6,160 in damages.
The Court of Appeals reversed, providing some basic guidance on the law of trespass in the process. It said the evidence failed to prove the elements of either trespass or conversion. Common-law trespass, the Court said, is the unauthorized entry by a person upon land of another. For damages to be awarded for trespass, a plaintiff has to show that the defendant intended to be on the property and that he directly interfered physically with that property. Removing trees from someone else’s property may also be statutory trespass. A person can wrongfully cut down a tree in two ways, either of which would result in trespass under § 537.340 RSMo. He can enter the land without permission and cut down the trees. Alternatively, he can enter with the owner’s consent and then exceed the scope of the consent by cutting down trees without permission.
Here, the Court found, Muir – wisely or not – had given Ruder permission to enter his property. Muir argued that the agreement was broken because landscaper removed the first batch of trees, but did not transplant the trees Muir wanted moved. Ruder testified that he had already removed the first trees before he realized that the trees Muir wanted transplanted were too large for his equipment. Ruder nevertheless returned to the property for more trees. Muir said he “objected” when Ruder took the second load before paying for the first load, but he didn’t tell Ruder to leave or to bring the first load of trees back. Instead, he watched Ruder take the second load, and even had Ruder show him how to bag trees. The Court said, “One who silently watches another enter upon his land, and then willingly engages him in conversation while standing on the premises, may not later complain of trespass.”
More high school football coming up tomorrow. Go, Truckers!
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 