Study guide
13.5 Trespass to Land
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
13.5 Trespass to Land
Key Takeaways Explain This Topic AI
Trespass to land is an intentional physical entry onto land in the possession of another, and the only intent required is the intent to enter the land.
A mistaken belief that the land is one's own, or that entry is permitted, is no defense.
No actual damage is required, so nominal damages are available for a harmless entry.
The tort protects a reasonable amount of airspace above and soil below the surface, and includes causing a physical object or third person to enter.
A person who lawfully enters but refuses to leave after permission is withdrawn becomes a trespasser.
Last updated: September 2026
Trespass to Land
Doctrinal Foundation: Intentional torts to property protect possessory and proprietary interests in real property (land, structures, and fixtures) and personal property (chattels). On the California First-Year Law Students' Examination (FYLSE), property torts test your ability to separate land invasions from intangible nuisances, enforce the strict rule that good-faith mistake does not excuse trespass, apply the vertical boundaries of real property, and delineate the sharp boundary between Trespass to Chattels (requiring actual damage, with damages measured by repair or loss of use) and Conversion (warranting a forced judicial sale for full market value).
I. Trespass to Land ( Quare Clausum Fregit )
Trespass to land protects the plaintiff's interest in the exclusive possession of real property . It is an action vindicating possession rather than ownership; a tenant in lawful possession can maintain trespass against anyone, including the legal landlord.
The Prima Facie Elements
To establish a prima facie case of trespass to land, the plaintiff must prove:
- An act of physical invasion of real property;
- Intent to bring about a physical invasion of the land; and
- Lawful possession of the real property by the plaintiff. ┌──────────────────────────────────────┐
- │ Prima Facie Case: Trespass to Land │
- └──────────────────┬───────────────────┘
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- ┌──────────────────┬───────────────┴───────────────┬──────────────────┐
- ▼ ▼ ▼ ▼
- [PHYSICAL INVASION] [INTENT] [REAL PROPERTY] [NO INJURY NEEDED]
- Defendant enters - Intent to enter THAT space - Surface, subsurface - Actionable per se
- Causes object to - Mistake of boundary is - Lower airspace - Nominal damages
- enter land NO DEFENSE (Causby rule) presumed to protect
- Fails to remove - Transferred intent applies - Lawful possession title/possession
- 1. The Nature of the Physical Invasion
A physical invasion occurs whenever the defendant:
Enters the land in person without consent;
Propels, throws, or projects a tangible physical object onto the land (e.g., throwing rocks across the boundary, shooting bullets over the parcel, chasing livestock onto the land, or grading soil such that dirt spills onto the neighbor's lot);
- Causes a third person to physically enter the property;
- Remains on the land after lawful permission, license, or lease has expired;
Fails to remove an object from the land after a legal duty to remove it has arisen (e.g., leaving building materials on a neighbor's driveway after completing an agreed repair).
Warning
Tangible Invasions vs. Intangible Intrusions (Trespass vs. Nuisance): Trespass to land strictly requires an invasion by a tangible physical mass or object . Intangible intrusions—such as microscopic smoke, toxic odors, noxious chemical fumes, loud noise, bright lights, or seismic vibrations—do NOT constitute trespass to land. Instead, intangible interferences with the use and enjoyment of land are actionable exclusively under private nuisance or negligence , unless the particles accumulate as visible, tangible deposits on the soil.
2. The Intent Requirement: Mistake Is No Defense
The intent required for trespass to land is merely the intent to enter or be present on that specific physical space :
No Intent to Trespass Required: The defendant does not need to know that the land belongs to another, nor intend to cross a legal boundary.
The Absolute Rule on Mistake of Fact: A good-faith, reasonable mistake as to ownership, boundary lines, or legal permission is NO DEFENSE . If an individual purchases land, hires a surveyor who mistakenly places boundary stakes ten feet into the neighbor's property, and the individual erects a fence or walks on that strip, the individual is liable for trespass to land ( Perry v. Jefferies ).
Involuntary Physical Invasions: If an actor is thrown onto the land by third parties, or suffers an involuntary epileptic seizure and collapses across the property line, there is no trespass to land because there was no volitional intentional act.
3. Vertical Scope of Real Property: Airspace and Subsurface
At early common law, real property ownership was governed by the maxim cuius est solum, eius est usque ad coelum et ad inferos ("whoever owns the soil owns up to the heavens and down to the depths"). Modern American jurisprudence applies a more functional standard:
Subsurface Rights: The possessor owns the subsurface to a reasonable depth. Horizontal subterranean mining, oil drilling, or running utility lines beneath another's soil without an easement constitutes a physical trespass.
Airspace Rights ( United States v. Causby , 328 U.S. 256 (1946)): The possessor owns the lower airspace immediately above the surface to the extent that the possessor can occupy or make practical use of it in connection with the land. High-altitude commercial aircraft flights do not constitute trespass. However, low-altitude flights, overhanging roof eaves, protruding tree limbs, utility lines strung over a yard, or low-flying surveillance drones that interfere with the owner's immediate use and enjoyment constitute actionable trespass to land.
4. Damages
Trespass to land is actionable per se . The plaintiff does not need to prove actual physical harm, diminution in value, or disruption. Nominal damages are recoverable automatically to vindicate the possessory right and prevent the trespasser from acquiring a prescriptive easement.