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Don’t Trespass On Me

The focus of this site is, of course, on nuisance law, including discussions about how an amorphous reading of its elements can lead to difficult procedural and substantive issues. In my entry of September 25 last year, I talked about “mission creep” – how the expansive tort boat goes only in one direction, with the result that traditional tort actions with predictable and confined elements are re-interpreted over time to dilute or eliminate those elements and embrace activities traditionally never thought to trigger liability. A perfect example of this phenomenon occurring today can be found in the law of trespass. If you thought attempts were being made to distort traditional nuisance law, the law of trespass is now being cited as a basis for suit because it is even easier to prevail than under nuisance law broadly interpreted.

Traditionally, there has been a bright line between nuisance law and trespass. Nuisance law applies when your neighbor is doing something on his property that is causing you harm. Because we all live together and have to tolerate some level of annoyance, rules were developed limiting one’s ability to sue. As discussed elsewhere on this site, nuisance generally includes an element of fault or negligence, and even the Second Restatement’s broad language requires that action be “unreasonable.” See Restatement (Second) of Torts, §§ 821B, 822, 821B, cmt.(e).

In contrast, trespass occurs whenever you disturb your neighbor’s right to exclusive possession of his property. It requires no intent to harm, fault or negligence. A man’s home is his castle. See, e.g., Dan B. Dobbs, 1 The Law of Torts, § 50 at 96 (2001); Restatement (Second) of Torts, §158; W. Keeton et al., Prosser and Keeton on Torts., § 13 at 71. Because the gist of the tort is interference with exclusive possession, there must be a physical invasion. For that reason, the rule was that, to have trespass, something tangible must come onto your property – smoke, noise, light and the ilk were left to nuisance law. See W. Keeton et al., Prosser and Keeton on Torts, § 13 at 71; Dobbs, § 53 at 104.

Now there is a movement afoot to “modernize” trespass law. The theory is that back when these rules were being forged, our ancestors didn’t understand modern science and how tiny particulates, or noise, or odors or other intangibles can move in waves over your property. Understanding that this “intangible” change in trespass law expands the law – indeed, it basically makes for a nuisance claim stripped of the need to prove any unreasonableness – some but not all jurisdictions adopting this “modern” view require that the intangible invasion cause “substantial” harm. See John Larkin Inc. v. Marceau, 959 A.2d 551, 554 (Vt. 2008). See also Mercer v. Rockwell Int. Corp., 24 F.Supp.2d 735, 742-43 (W.D. Ky. 1998) (need only show “actual” damages); Mock v. Potlach Corp., 786 F.Supp. 1545 (D. Idaho 1992) (“modern” view is that noise can be a trespass if damages are substantial); Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N .E. 2d 406 (1963), (vibration); Maryland Heights Leasing v. Mallinckrodt. Inc., 706 S.W.2d 218, 225-26 (Mo. 1985) (intrusion by “radioactive emissions” may constitute trespass); Garner v. Walker, 577 So.2d 1276 (Ala. 1991 ) (noise and dust).

In sum, trespass is being converted into a strict liability tort for nuisance.

Note that intangible invasion can include things like … heat. While the recent Second and Fifth Circuit climate change cases have engendered discussion about their implications as to nuisance law, the Fifth Circuit upheld a trespass claim in that decision as well. Comer v. Murphy Oil, USA Inc., 585 F.3d 855 (5th Cir. 2009).

Thus, in theory, if the court reads the governing state law to adopt the “modern” trespass tort, then everyone on the planet has a no-fault claim against anyone contributing to global warming. The only boundary is that the harm be substantial – and some courts, e.g. Mercer, supra, don’t even require that.

There is nothing subtle about this attempt to expand tort law to avoid burdens of proof. The federal district court in Maine has certified a question to the Maine Supreme Judicial Court asking whether Maine adopts the “modern” view. Darney v. Dragon Products Company, LLC, Docket No. 08-cv-47-P.S (Aug. 6, 2009). In their brief to the Maine Court, the plaintiffs candidly urge the Maine Court to adopt that view for “public policy reasons,” i.e., having to prove fault is “difficult” and not having to meet that burden will give them “a better chance to obtain relief.” Darney v. Dragon Products Company, LLC, Docket No. FED-09-415, Appellee Brief at 1-2 & 7.

Maybe the name of this site should be changed to nuisanceandtrespasslaw.com.