Trespass to Land

A person is liable for the intentional tort of “trespass to land” if he/she intentionally (1) enters land in the possession of the other, or causes a thing or third person to do so; or (2) remains on the land; or (3) fails to remove from the land a thing which he is under a duty to remove.

Reference Desk:

Adams v. Cleveland-Cliffs Iron Co., 602 N.W. 2d 215 (Mich. App. 1999)

I. Trespass and Nuisance

The general concept of “property” comprises various rights— a “bundle of sticks,” as it is often called[6]— which is usually understood to include “[t]he exclusive right of possessing, enjoying, and disposing of a thing.” Black’s Law Dictionary (6th ed., 1990), p. 1216. As this latter characterization suggests, the right to exclude others from one’s land and the right to quiet enjoyment of one’s land have customarily been regarded as separate sticks in the bundle. E.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1044, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (Blackmun, J., dissenting) (addressing as separate “attributes of ownership” the rights of exclusion, alienation, and enjoyment); Biggs v. Comm’r of Internal Revenue, 632 F.2d 1171, 1177 (C.A.5, 1980) (“`title to real property … is nothing more than a bundle of potential causes of action: for trespass, to quiet title, for interference with quiet enjoyment, and so on,'” quoting Starker v. United States, 602 F.2d 1341, 1355 [C.A.9, 1979]); Livingston, Public Access to Virginia’s Tidelands: A Framework for Analysis of Implied Dedications and Public Prescriptive Rights, 24 Wm & Mary L R 669, 698 (1983) (“The notion of fee simple ownership carries with it the idea that the owner may exclude all others from his property, shall have the quiet enjoyment of it, and shall be free from unrecorded conflicting interests in it.”), citing Cribbet, Principles of the Law of Property (2d ed., 1975), pp. 263-332.[7] Thus, possessory rights to real219*219 property include as distinct interests the right to exclude and the right to enjoy, violations of which give rise to the distinct causes of action respectively of trespass and nuisance. Prosser & Keeton, Torts (5thed.),§ 87, p. 622.

A. Historical Overview

“At common law, trespass was a form of action brought to recover damages for any injury to one’s person or property or relationship with another.” Black’s Law Dictionary (6th ed.), p. 1502. This broad usage of the term “trespass” then gave way to a narrower usage, referring to intrusions upon a person’s “tangible property, real or personal.” Prosser & Keeton, supra at § 13, p. 67. Today, the general concept of “trespass” has been refined into several specific forms of trespass, see Black’s Law Dictionary (6th ed.), pp. 1502-1504, and related doctrines known by various names. Landowners seeking damages or equitable relief in response to violations of their possessory rights to land now generally proceed under the common-law derivatives of strict liability, negligence, nuisance, or trespass to land.[8] It is the latter two products of this evolution from the general concept of trespass that are at issue in the present case.

“`[T]respass is an invasion of the plaintiff’s interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it.’ “Hadfield v. Oakland Co. Drain Comm’r, 430 Mich. 139, 151, 422 N.W.2d 205 (1988) (Brickley, J., joined by Riley, C.J., and Cavanagh, J.), quoting Prosser & Keeton, supra at § 87, p. 622. Historically, “[e]very unauthorized intrusion upon the private premises of another is a trespass….” Giddings v. Rogalewski, 192 Mich. 319, 326, 158 N.W. 951 (1916). Because a trespass violated a landholder’s right to exclude others from the premises, the landholder could recover at least nominal damages even in the absence of proof of any other injury. Id. Recovery for nuisance, however, traditionally required proof of actual and substantial injury.[9] Further, the doctrine of nuisance customarily called for balancing the disturbance complained of against the social utility of its cause.[10]

Traditionally, trespass required that the invasion of the land be direct or immediate and in the form of a physical, tangible object. See, e.g., Williams v. Oeder, 103 Ohio App.3d 333, 338, n. 2, 659 N.E.2d 379 (1995) (noting then abandoning those traditional requirements); Davis v. Georgia-Pacific Corp., 251 Or. 239, 242, 445 P.2d 481 (1968) (abandoning the traditional requirements); Norwood v. Eastern Oregon Land Co., 139 Or. 25, 37, 5 P.2d 1057 (1931), modified 139 Or. 25, 7 P.2d 996 (1932)(wrongful diversion of water onto another’s land does not constitute trespass to land). Under these principles, recovery in trespass for dust, smoke, noise, and vibrations was generally unavailable because they were not considered tangible or because they came to the land via some intervening force such as wind or water. Instead, claims concerning these irritants were generally pursued under a nuisance theory.

B. Recent Trends

Plaintiffs urge this Court to hold that they are entitled to recover in trespass 220*220 for invasions of their premises by intangible things without regard for how these annoyances came to their land. Plaintiffs would have us follow the example of certain courts from other jurisdictions, which have eliminated the traditional requirements for trespass of a direct intrusion by a tangible object, directing the inquiry instead toward the nature of the interest harmed. These courts have permitted recovery in trespass for indirect, intangible invasions that nonetheless interfered with exclusive possessory interests in the land. See 75 Am Jur 2d, Trespass, § 33, p. 33 and cases cited. See also Mercer v. Rockwell Int’l Corp., 24 F.Supp.2d 735, 743 (W.D.Ky., 1998) (allowing an action in “negligent trespass” concerning intrusions of invisible polychlorinated biphenyls [PCBs] that actually harm the property); Williams, supra(airborne particulate matter from a sand and gravel processing facility, an asphalt plant, and a concrete plant constituted trespass); Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959) (trespass may stem from fluoride compounds in the form of gases and particles). We agree with the characterization of cases of this sort found in Prosser & Keeton as being “in reality, examples of the tort of private nuisance or liability for harm resulting from negligence,” not proper trespass cases. Prosser & Keeton, supra at § 13, pp. 71-72 (concerning “decisions finding a trespass constituted by the entry of invisible gases and microscopic particles, but only if harm results”). Accordingly, we decline plaintiffs’ invitation to strip the tort of trespass to land of its distinctive accouterments and commingle its identity with other causes of action.

As stated above, the traditional view of trespass required a direct entry onto the land by a tangible object. However, recent trends have led to an erosion of these requirements. Some courts have eliminated the requirement of a direct entry onto the land. E.g., Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 686, 709 P.2d 782 (1985); Borland v. Sanders Lead Co., Inc., 369 So.2d 523, 527 (Ala., 1979);Martin, supra at 101, 342 P.2d 790 (observing the trend without deciding whether to join it), citing Prosser, Torts (2d ed.), p. 56; 1 Restatement, Torts, § 158, comment h. Some courts have likewise eliminated the requirement of a tangible object. E.g.,Bradley, supra at 686, 709 P.2d 782; Borland, supra at 529. See also Martin, supra at 100, 342 P.2d 790 (trespass to land may be accomplished by “a ray of light, by an atomic particle, or by a particulate of fluoride”). In some cases the direct-and-tangible inquiry has been supplanted by an inquiry into the force and energy of the intruding agent. E.g., Bradley, supra at 687, 709 P.2d 782; Borland, supra at 527; Martin, supraat 93, 342 P.2d 790.

The courts that have deviated from the traditional requirements of trespass, however, have consequently found troublesome the traditional principle that at least nominal damages are presumed in cases of trespass. Thus, under the so-called modern view of trespass, in order to avoid subjecting manufacturing plants to potential liability to every landowner on whose parcel some incidental residue of industrial activity might come to rest, these courts have grafted onto the law of trespass a requirement of actual and substantial damages. Bradley, supra at 692, 709 P.2d 782; Borland, supraat 529. See also Martin, supra at 96, 342 P.2d 790 (observing that “[t]here are adjudicated cases which have refused to find a trespass where the intrusion is clearly established but where the court has felt that the possessor’s interest should not be protected”). Logically following from a requirement of substantial damages is the weighing of those damages against the social utility of the activity causing them.Martin, supra at 97, 342 P.2d 790 (balancing “the intrusion … against the socially desirable conduct of the defendant”). See also Bradley, supra at 685, 709 P.2d 782(“While the strict liability origins of trespass encourage courts to eschew a balancing test in name, 221*221 there is authority for denying injunctive relief if defendant has exhausted his technological opportunities for control…. Acknowledging technological or economic justifications for trespassory invasions does away with the historically harsh treatment of conduct interfering with another’s possessory interests.”).[11]

We do not welcome this redirection of trespass law toward nuisance law. The requirement that real and substantial damages be proved, and balanced against the usefulness of the offending activity, is appropriate where the issue is interference with one’s use or enjoyment of one’s land; applying it where a landowner has had to endure an unauthorized physical occupation of the landowner’s land, however, offends traditional principles of ownership. The law should not require a property owner to justify exercising the right to exclude. To countenance the erosion of presumed damages in cases of trespass is to endanger the right of exclusion itself.

To summarize, the effects of recent trends in the law of trespass have included eliminating the requirements of a direct invasion by a tangible object, requiring proof of actual and substantial damages, and weighing the plaintiff’s damages against the social utility of the operation causing them. This so-called “modern view of trespass” appears, with all its nuances and add-ons, merely to replicate traditional nuisance doctrine as recognized in Michigan. Indeed, the trends recognized or advanced byBradley, Borland, Martin, and their kindred spirits have conflated nuisance with trespass to the point of rendering it difficult to delineate the difference between the two theories of recovery.

With all of these modern adjustments to traditional trespass law, it is little wonder that it has become difficult to differentiate between trespass and nuisance. These adjustments have caused some to observe that “`the line between trespass and nuisance has become “wavering and uncertain,'” `”Bradley, supra at 684, 709 P.2d 782, quoting Rodgers, Environmental Law, § 2.13, p. 154 (1977). See also Burke v. Briggs, 239 N.J.Super. 269, 272, 571 A.2d 296 (1990) (the blurring of the distinction between the two causes of action “has often led to results that are difficult to explain”), citing Prosser & Keeton, supra at § 87, p. 622. Indeed, “it is apparent that the law of trespass and the law of nuisance come very close to merging.” Martin, supra at 97, 342 P.2d 790. We prefer to preserve the separate identities of trespass and nuisance.

C. Adkins v. Thomas Solvent Co.

As stated above, no Michigan appellate court has squarely confronted the question whether the law of trespass in this state covers intrusions of intangible things or intrusions that are effected by indirect means. However, plaintiffs argue that inAdkins v. Thomas Solvent Co., 440 Mich. 293, 487 N.W.2d 715 (1992), the Michigan Supreme Court impliedly eliminated the requirements that a trespass involve intrusions that are both direct and tangible. We disagree.

In Adkins, the plaintiffs sought damages in nuisance from the defendant chemical company, on the ground that public perceptions to the effect that the defendant’s activities were causing environmental contamination of the groundwater caused depreciation of their property values, id. at 300, 487 N.W.2d 715, even though the plaintiffs acknowledged that the defendant’s activities in fact did not harm their groundwater, id. at 318, 487 N.W.2d 715. Our Supreme Court ruled that summary disposition was proper because unfounded fears of contamination did not constitute a significant interference with plaintiffs’ use and enjoyment of their property and, thus, did not rise to the level of an actionable 222*222 private nuisance claim. Id. at 318-319,487 N.W.2d 715.

In discussing the historical development of nuisance law, the Court observed that the doctrine of nuisance evolved from that of trespass, id. at 307-308, 487 N.W.2d 715, and recognized that traditionally in cases of trespass damage was presumed whereas in nuisance substantial damage had to be proved:

“Any intentional and unprivileged entry on land is a trespass without a showing of damage, since those who own land have an exclusive right to its use; but an act that interferes with use but is not in itself a use is not actionable without damage. The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant’s conduct.” [Id. at 304-305, 487 N.W.2d 715, quoting Prosser & Keeton, supra at § 87, p. 623.]However, in footnote 23, the Court recognized the recent developments in other jurisdictions under which the requirement for nuisance of substantial damage had crept into trespass:

The common-law development of trespass, like nuisance, is … illustrative of a need to limit recovery to a proper case. In Bradley [supraat] 690-691…, 709 P.2d 782, the court discussed the modern view of trespass, which allowed recovery for indirect invasions of property such as those caused by smoke or air particles. Airborne particles might also give rise to an action in nuisance. To avoid “sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant,” the court interposed the actual and substantial damages requirement. Id., at p. 692, 709 P.2d 782. The substantial interference doctrine achieves the same purpose in nuisance law. [Adkins, supra at 310, n. 23, 487 N.W.2d 715.]Plaintiffs admit that Adkins was a nuisance case, but argue that by way of the language quoted immediately above our Supreme Court adopted the “modern view of trespass” allowing recovery for invasions of property such as those of which plaintiffs complain. However, we do not regard dicta from Adkins in which the Supreme Court referred to a sister-state trespass case to illustrate a point of law regarding nuisance as effecting a merger of the two doctrines in this regard. We have in fact found no case in this state in which recovery in trespass was allowed merely for intrusions of particulate matter, noise, or vibrations, and we decline to inflect this state’s jurisprudence in that direction. Instead, we prefer to respect the traditional requirement of a direct invasion and agree with Prosser and Keeton, supra at § 13, p. 72, that “[t]he historical requirement of an intrusion by a person or some tangible thing seems the sounder way to go about protecting the exclusive right to the use of property.”

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