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Date: Wed, 22 Feb 2006 09:06:55 -0600

From: Richard Wright

Subject: Can Trespass to land be committed without fault (other than in Canada)?


An old, but well known, United States case is Maye v. Yappen, 23 Cal. 306 (1863), in which both defendants and plaintiffs were initially unaware of the true location of the boundary line between their adjoining mining claim properties, and one of the plaintiffs assured the defendants that they were still 40 to 50 feet away from the boundary. The defendants tunneled only 25 more feet, then had a survey done, which disclosed that they had crossed the boundary into plaintiffs' property. Held: trespass, regardless of reasonableness of mistake; no consent; no estoppel.

The statement in Stanley v Powell [1891] 1 QB 86, that you need to show either negligence or actual intention for trespass to the person to be made out, applies also for trespass to land, but is not contrary to liability in these types of cases. For person or land, the required intent is simply the intent to make physical contact with the body actually contacted or to enter onto the land actually entered. A mistake regarding ownership or consent, no matter how reasonable, is not a defense (unless it was deliberately or negligently caused by the defendant). If I slap a stranger on the back, mistakenly thinking it is a friend who agrees to such touching, it is a battery. If I slap at a fly on a leg under the table, mistakenly thinking it is my leg, I have committed a battery, no matter how reasonable my mistake. The same for land.


From: Goldberg, John
Sent: Wed 2/22/2006 6:09 AM
Subject: ODG: RE: Can Trespass to land be committed without fault (other than in Canada)?

See, e.g., Burns Philp Food, Inc. v. Cavalea Contintental Freight, Inc., 135 F.3d 526 (7th Cir. 1998) (applying Illinois law) (company that builds fence on neighbor's property has committed trespass even though it thought the fence was on its property and "no one knew otherwise" until years after it was built; the fact that the company may have acted reasonably is irrelevant to the issue of damages because trespass "is a strict liability tort") (citing Restatement (Second) of Torts Section 158).



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