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Julian Guriev
Julian Guriev


Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding, mayhem (or maiming), and false imprisonment.[1] 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";[2] battery, "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it";[2] and false imprisonment, the "unlawful obstruction or deprivation of freedom from restraint of movement".[3]


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 [real] property".[11][12] Generally, it is not necessary to prove harm to a possessor's legally protected interest; liability for unintentional trespass varies by jurisdiction. "At common law, every unauthorized entry upon the soil of another was a trespasser"; however, under the tort scheme established by the Restatement of Torts, liability for unintentional intrusions arises only under circumstances evincing negligence or where the intrusion involved a highly dangerous activity.[13]

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,[14] 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."[15] Generally, and as defined by Goff LJ in Collins v Wilcock,[16] trespass to the person consists of three torts: assault, battery, and false imprisonment.

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 "exercise[d] prudence and restraint".[40] Unreasonable punishments, such as violently grabbing a student's arm and hair, have no defense.[41] Many jurisdictions, however, limit corporal punishment to parents, and a few, such as New Zealand, have criminalized the practice.[42]

Perhaps the most common defense for the torts of trespass to the person is that of volenti non fit injuria, 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,[43] 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.[44] 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 [the combatants] for any injury suffered".[45] Other jurisdictions refuse to recognize consent as a defense to mutual combat and instead provide relief under the doctrine of comparative negligence.[46][47][48]

Self-defense, or non-consensual privilege, is a valid defense to trespasses against the person, assuming that it constituted the use of "reasonable force which they honestly and reasonably believe is necessary to protect themselves or someone else, or property".[52] The force used must be proportionate to the threat, as ruled in Cockcroft v Smith.[53]

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.[62] "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,[63] 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,[64] but organs are not.[65]

In recent years, trespass to chattels has been expanded in the United States to cover intangible property, including combating the proliferation of unsolicited bulk email 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,[66] and later to include unsolicited bulk email.[6] 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.[8] In America Online, Inc. v. LCGM, Inc.,[67] AOL 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,[68] a California court ruled that Bidder's Edge's use of a web crawler 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.[69] A number of similar cases followed until, in Intel v. Hamidi,[70] the Supreme Court of California 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 agreements to govern user behavior.[71] Nevertheless, as virtual worlds grow, incidents of property interference, a form of "griefing", may make trespass to chattel an attractive remedy for deleted, stolen, or corrupted virtual property.[61]

Trespass to land involves the "wrongful interference with one's possessory rights in [real] property."[11] 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.[72] 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.[13] Exceptions exist for entering land adjoining a road unintentionally (such as in a car accident), as in River Wear Commissioners v Adamson.[73] 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.[74]

William Blackstone's Commentaries on the Laws of England articulated the common law principle cuius est solum eius est usque ad coelum et ad inferos, translating from Latin as "for whoever owns the soil, it is theirs up to Heaven and down to Hell."[75] 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,[76] but a subsurface invasion by hydraulic fracturing is not.[77] Where mineral rights are severed from surface ownership, it is trespass to use another's surface to assist in mining the minerals beneath that individual's property,[78] but, where an emergency responder accesses the subsurface following a blowout and fire, no trespass lies.[79] Even the possible subsurface migration of toxic waste stored underground is not trespass,[80] except where the plaintiff can demonstrate that the actions "actually interfere with the [owner's] reasonable and foreseeable use of the subsurface[,]"[81] or, in some jurisdictions, that the subsurface trespasser knows with "substantial certainty" that the toxic liquids will migrate to the neighboring land...[82]

The main element of the tort is "interference". This must be both direct and physical, with indirect interference instead being covered by negligence or nuisance.[87] "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.[88] 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, or if, by owner acquiescence or through adverse possession, the road has undergone a common law dedication to the public.[89] In Hickman v Maisey[90] and Adams v. Rivers,[91] the courts established that any use of a road that went beyond using it for its normal purpose could constitute a trespass: "[a]lthough a land owner's property rights may be [s]ubject to the right of mere passage, the owner of the soil is still absolute master."[92]British courts have broadened the rights encompassed by public easements in recent years. In DPP v Jones,[93] 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."[94] The principles established in Adams remain valid in American law.[92][95] 041b061a72

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