Rule: Trespass is the unprivileged physical invasion of property possessed by another.

A plaintiff suing for trespass must

prove that the defendant’s actions constituted (1) an intentional (2) intrusion (3) on property possessed by plaintiff (4) that
was not privileged.

(1) With respect to the first element of trespass, plaintiff need not prove that defendant intended to violate plaintiff’s property rights by
making a knowing, unlawful entry onto plaintiff’s property. Thus, plaintiff need not prove that defendant had the subjective intent to
commit a trespass or even that defendant knew he was trespassing. All that plaintiff must show is that defendant intended to
enter the land as a matter of free choice, and such land was in plaintiff’s possession.
a. Defense on element (1) – MISTAKE – Defendant’s mistaken belief that he owns the land, or defendant’s mistaken entry
onto the land will not relieve defendant of trespass liability.
i. However, it will presumably bar punitive damages.

(2) With respect to the second element, defendant’s conduct will constitute an intrusion onto plaintiff’s property from the moment
defendant enters plaintiff’s property.
a. Defendant’s intrusion need not necessarily occur by means of physical entry of his own person. Defendant will also be
liable in trespass for a physical entry by defendant’s agent, such as an employee, or an object such as a building that
extends over the boundary onto a neighbor’s property. Further, although the iconic trespass claim involves entry onto the
surface of land, trespass may also occur both above (sometimes, in air space over the land) or below (e.g. through
tunnels or caves) the surface.
Further, a trespass defendant is liable even if his entry causes no actual damage.
[see damages section]

(3) With respect to the third element, the law of trespass protects not just owners of property, but possessors of property, such as
tenants.
a. As a general rule, a possessor has the right to exclude everyone except for the record title holder. However, in certain
circumstances, particularly tenancies, non-record title holding possessors may have the right to exclude even the true
owner.
b. Trespass law does NOT protect those with nonpossessory rights, such as holders of easements, future interests, or
beneficiaries of covenants.
i. [FILL IN THEIR REMEDIES HERE!]

(4) With respect to the fourth and final element, the law generally recognizes three privileges which, if established, will render a
defendant’s entry onto plaintiff’s land non-trespassory. An entry is privileged, and thus not wrongful, if (a) the entry is done with the
consent of the possessor, (b) the entry is justified by necessity to prevent a more serious harm to persons or property, or (c) the
entry is otherwise encouraged by public policy.
a. Consent
i. Consent may be either explicit (e.g., lease, dinner invitation) or implicit (e.g., a storeowner is implicitly considered
to have consented to patrons’ entry).
ii. FRAUDULENTLY OBTAINED CONSENT – WILL NOT DEFEAT CONSENT!
1. Desnick v. ABC – 7th Cir. (Posner) – Rule: If initial entry is consensual, despite being obtained by
fraud, defendant’s entry will not constitute a trespass. Posner distinguished – based on the specific
interests owners have in excluding others from their property – between cases where fraud negate
consent, and cases like Desnick, where it would not:
a. If the entry related to the owner’s interest in his home or body, which the tort of trespass seeks
to protect, a trespass will be found. (E.g., fake meter reader comes to home; spy gets job to
steal trade secrets).
b. If there is no invasion of a legally protected interest in property or privacy, no interest which the
tort of trespass seeks to protect has been violated, and, despite the fraud, consent will defeat
the trespass claim. (E.g., food critic; “testers” who pose as potential home buyers in order to
gain evidence of housing discrimination).
2. Food Lion v. Capital Cities/ABC – 4th Cir. – held: Misrepresentations designed to induce consent
(lying about who they were and their purposes) does not invalidate consent. Although D lied to gain
entry, P voluntarily consented to the entry nonetheless. However, a trespass occurred because D’s
activities (secretly videotaping) exceeded the scope of the permission to enter (see exceed the scope)
iii. EXCEED THE SCOPE – WILL DEFEAT CONSENT!
1. Rule: [fill in]
2. Food Lion v. Capital Cities/ABC – 4th Cir. – held: Although the case failed on fraudulently obtained
consent, a trespass occurred because D’s activities (secretly videotaping) exceeded the scope of the
permission to enter granted by P.
b. Necessity - Subject to certain limitations, non-owners are entitled to enter property possessed by another in order to save
either lives or property or otherwise avert a serious harm.
c. Encouraged by public policy
i. Cemeteries – Individuals may have rights of access to cemeteries to visit the graves of their loved ones, even if
they are located on private property that has been sold to a subsequent owner.
ii. Public Accommodations – Public accommodations are facilities that are open to the public and hold
themselves out as ready to serve members of the general public for specific purposes.
1. Minority rule – Uston v. Resorts International – The public has a right of reasonable access to all
businesses and facilities open to the public. Property owners who open their premises to the general
public in the pursuit of their own property interests have no right to exclude people unreasonably, and,
in fact, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on
their premises.
2. Majority rule – The general, absolute right to exclude, subject to statutory anti-discrimination laws [see
iii below], is limited only with respect to innkeepers and common carriers (planes, trains, buses), who
have a duty to serve the public without discrimination unless there is a good reason to withhold services
to a particular individual.
a. Madden v. Queens County Jockey Club – So long as defendant racetrack was found to not
have excluded plaintiff in a way that violated statutory anti-discrimination laws, defendant need
not explain why it excluded him, as it enjoyed an absolute right to exclude, and plaintiff had no
right of access to defendant’s property.
3. Antidiscrimination Statutes & Policy - Make businesses vulnerable to claims of wrongful exclusion if
they refuse to serve customers on a number of grounds, such as race, religion, and disability.
a. (Federal) Civil Rights Act (1964) – Targeted discrimination based on race, color, religion, and
national origin (not sex!), and include restaurants, motels, places of entertainment, and gas
stations in public accommodations definition
1. Note: Ask – Is the business/facility covered by the relevant law?
ii. Problem – 14th Amendment authorizes Congress to regulate state action but not
private action by owners of private property.
1. Solution – Always look for state action! The government must be involved in
some way in the alleged discrimination!
2. Further, the 1964 Act was passed pursuant to the commerce clause, thus an
action will be appropriate if there is state action OR if the business affects
commerce in some way.
iii. Exception – PRIVATE CLUBS – NOT subject to the Civil Rights Act. (E.g. private club
in Watson v. Fraternal Order of Eagles refused to serve drinks to African American
guests).
b. (Federal) Americans with Disabilities Act (1990) prohibits discrimination on the basis of
disability in both employment and public accommodations, and expands public
accommodations to include educational institutions, doctors’ and lawyers’ offices, restaurants,
retail stores of all kinds, barber shops, and funeral parlors.
c. State public accommodations laws prohibiting discrimination may broaden (but not narrow) the
types of property, classes of persons, and discrimination prohibited.
i. NJ Law Against Discrimination (LAD) provides that all persons shall have the
opportunity to obtain all the accommodations, advantages, facilities and privileges of
any place of public accommodation without discrimination, on bases which include
sexual orientation.
1. Exception – “Distinctly private” clubs - Ask: Is the organization selective in its
membership? Does the organization have limits on the number of persons
who can join?
a. If the selection criteria track a statutory category, it is unlikely the
group will be held to be a private club. (e.g. men). This is especially
true if no limits are placed on membership size.
2. “PLACE of public accommodation” – NJ, Minn, Ct, have interpreted their
state statutes to apply to membership organizations that do not have a fixed
place of operations. (Boy Scouts cases).
a. Counter-rule – Mass held that the Jaycees were not subject to the
state public accommodations law because they were not a “place”
of public accommodation.
iii. Free Speech Rights of Access to Private Property
1. Federal – 1st Amendment protects the right of freedom of speech from state action, not private action.
Thus, while one has a right to, e.g., distribute literature on public property, this right does not
necessarily extend to private property as well.
a. YES PRIVATE IS LIKE PUBLIC - Marsh v. Alabama – (privately owned town) SCOTUS held:
Where private interests were substituting for and performing the customary functions of
government, 1st Amendment freedoms could not be denied where exercised in the customary
manner on the town’s sidewalks and streets.
b. BUT NOT - Lloyd Corp. v. Tanner – A privately held shopping center is not so dedicated to
public use as to create a right for private parties to exercise their 1st Amendment rights on the
 premises. Malls are not so dedicated to public use as to analogize its functions to that of a city
government.
2. State constitutions (United Food v. Crystal Mall Assoc. (CT case))
a. Majority rule – state constitutional free speech only applies to public actors and facilities
b. Minority rule – 5 states (CA, CO, NJ, WA) – state constitutional free speech permits some
petitioning, distributing literature, etc. in private shopping centers. These states essentially
answer “yes” to the question, “is a shopping center the modern equivalent of yesterday’s
downtown business district?”
iv. Beach Access – Public Trust Doctrine, and three other CL doctrines to grant rights of access to beaches by the
general public (dedication, prescription, and custom)
1. Public Trust Doctrine – Provides that state governments act as trustees over navigable waters and
certain related lands [ISSUE: disputed among courts!] in order to protect the public’s right to use these
areas for necessities (navigation, fishing) and recreational uses (swimming, etc.).
a. Public has a right to access lands covered by tidal waters (Arnold)
b. Public has a right to access municipally-owned dry sand beaches (Neptune)
c. Extending the public trust doctrine to quasi-public organizations (DO NOT ASSUME THIS
EXTENDS TO ALL PRIVATELY-OWNED BEACHFRONT PROPERY!):
i. Matthews v. Bay Head Improvement Assoc. (NJ) – held: The public is entitled to use
and occupy the dry-sand beach owned by a quasi-public organization that regulated
and protected most of the beaches in the area, where the use was essential or
reasonably necessary for enjoyment of the ocean.
1. Rule: If an organization is (1) quasi-public AND (2) controls exclusively an
area of public concern, then (3) its power to exclude must be reasonably and
lawfully exercised in furtherance of the public welfare related to its public
characteristics.
a. Thus, a right to passage may sometimes be sufficient. However, as
in Matthews, where resting on the dry area is reasonably necessary
for enjoyment of the wet area, the Assoc. must grant the public
access the dry area
d. Limits:
i. MA limited public access under the public trust doctrine to tidal lands (not dry areas)
and excluded recreational uses. Such grants of access would be takings.
e. May the right of access to such waters be extinguished?
i. Some courts: yes – state may extinguish public rights of access under the public trust
doctrine by conveying property to private owners free of such rights
ii. Some courts: no – the rights encompassed by the public trust doctrine are inalienable
and lands subject to those rights cannot be reduced to private property free from
public trust obligations
2. Dedication – Involves a gift of real property from a private owner to the public at large.
a. Requires offer (unequivocal act by owner giving clear evidence of an intent to dedicate the
land to public use) and acceptance by the public.
b. Implied Dedication – Offer of the owner and acceptance by the public may serve as evidence
of an implied dedication where there is proof of long-standing acquiescence in use of the
beachfront property by the public.
3. Prescription – where the public has used property possessed by O for a particular purpose for a
statutory period, the public can acquire such rights of use permanently, by way of a prescriptive
easement.
a. Problem – often difficult to establish elements such as continuous use and adverse use
b. Rules:
i. Traditionally – courts did not allow the public to obtain prescriptive easements
ii. Modern – most courts will recognize such easements
4. Custom – some states, particularly those which reject prescription and have extensive coastlines, hold
that long-standing, uninterrupted, peaceable, reasonable, uniform use of the beachfront by the public for
recreational purposes confers on the public continuing access rights

Policy: Tragedy of the Commons

Issue: The issue is whether defendant has committed a trespass to chattels.

Rule: Defendant is liable for the tort of trespass to chattels where plaintiff can establish that defendant has intentionally interfered with
plaintiff’s possession of his personal property.
a. Limit: Mere touching by defendant of plaintiff’s chattel is insufficient! Plaintiff must either allege some injury to the property
OR show either dispossession or intentional “using or intermeddling” with it. (Rest. 2d Torts § 218)
 a. Intel Corp. v. Hamidi – Cal. SC reversed lower court on basis that no trespass to chattel could be found simply
where defendant (former employee) disrupted the plaintiff’s (employer’s) business by using its property, but
plaintiff could not show dispossession of its property, which could have been demonstrated by damage to the
computer system or impairing its functioning.
b. Relief: A plaintiff owner who prevails on a trespass to chattels claim is entitled to injunctive relief stopping any such
interference with the chattel.