Trespass – a misfeasance, transgression, or offense which damages another’s person, health, reputation, or property

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n. (13c)

1. A misfeasance, transgression, or offense which damages another’s person, health, reputation, or property.  Cox v Strickland, 120 Ga 104, 47 SE 912.

In the widest application of the term, any transgression or offense against the laws of nature or society whether relating to person or property. Grunson v State, 89 Ind 533.

The equivalent of tort or wrong.  Bichenor v Hayes, 41 NJL 193.

An unauthorized entry on another‘s property.  Heller v New York, N.H. & H.R. Co. (CA2 NY) 265 F 192, 17 ALR 823, 825

A common-law form of action which lies for the recovery of damages inflicted by the direct application of force.  An action which lies whenever an injury is the immediate result of the force originally applied by the defendant, and the plaintiff is injured thereby.  52 Am J1st Tresp § 2.

In its widest signification, trespass means any violation of law.  In its most restricted sense, it signifies an injury intentionally inflicted by force either on the person or property of another.  But still it has a signification in law much more narrow than the first, and more enlarged than the second meaning given, and embraces all cases where injury is done to the person or to property, and is the indirect result of wrongful force. Hill v Kimball, 76 Tex 210, 13 SW 59. [1]

1. An unauthorized entry or intrusion on the real property of another.
See continuing trespass; criminal trespass; joint trespass; permanent trespass.

2. In the widest sense of the term, any offense against the laws of society or natural law; any wrong; any violation of law.

3. An action at common law for the recovery of damages for injury resulting from the use or application of force.
See trespass on the case; trespass quare clausum fregit; trespass vi et armis. Also see forcible trespass.

4. Any misdeed, act of wrongdoing, or sin. [2]

1. An unlawful act committed against the person or property of another; especially, wrongful entry on another’s real property.  Cf. unlawful entry under ENTRY (1).

2. At common law, a lawsuit for injuries resulting from an unlawful act of this kind.  *  The lawsuit was instituted by a writ of trespass.

3. Archaic. MISDEMEANOR.trespass, vb. — trespassory, adj. [3]

     Excerpt from P.H. Winfield’s A Textbook of the Law of Tort (5th ed. 1950):

     “The familiar legend on notice-boards, ‘Trespassers will be prosecuted,’ implies that it is a crime, but this may usually be dismissed as ‘a wooden lie.’  Yet in time past the idea was correct, for trespass of any sort was punishable by fine and imprisonment as well as redressible by an action for damages, and actually it was not until 1694 that the punitive element disappeared although it had faded into obsolescence long before that date.  But nowadays trespass is never criminal except under special statutes which make it punishable . . . . [4]

     Excerpt from R.F.V. Heuston’s Salmond on the Law of Torts (17th ed. 1977):

     “The term trespass has been used by lawyers and laymen in three senses of varying degrees of generality.

(1) In its widest and original signification it includes any wrongful act — any infringement or transgression of the rule of right.  This use is common in the Authorised Version of the Bible, and was presumably familiar when that version was first published.  But it never obtained recognition in the technical language of the law, and is now archaic even in popular speech.
(2) In a second and narrower signification — its true legal sense — the term means any legal wrong for which the appropriate remedy was a writ of trespass — viz. any direct and forcible injury to person, land, or chattels.
(3) The third and narrowest meaning of the term is that in which, in accordance with popular speech, it is limited to one particular kind of trespass in the second sense — viz. the tort of trespass to land (trespass quare clausum fregit).

    Excerpt from Rollin M. Perkins & Ronald N. Boyce’s Criminal Law (3d ed. 1982):

    “Before the word ‘misdemeanor’ became well established the old writers tended to use the word ‘trespass’ to indicate an offense below the grade of felony. And it was used at times by Blackstone for this purpose, as in the phrase ‘treason, felony, or trespass.” [6]

Various Forms of Trespass:

cattle-trespass Hist. Trespass by one’s cattle or other animals on another’s land, as a result of which the other might either distrain them damage feasant or sue for trespass in the local courts.  *  At first (from the early 13th century) this type of trespass applied only to intentional trespass by the keeper of the cattle, but in 1353 it was extended to beasts that had merely escaped.  This type of trespass gave rise to strict liability.

     Excerpt from P.H. Winneld’s A Textbook of the Law of Tort (5th ed. 1950):

     “It has long been settled that liability for cattle-trespass is independent of negligence, and it is that which constitutes its strictness.  And, in spite of some confusion in time past, it is quite distinct from the scienter type of liability. in Lee v. Riley [(1865), 18 CE. (N.S.) 722] the defendant’s mare strayed through a gap in his fence, which it was his duty to repair, to the plaintiff ’s land and there quarrelled with and kicked the plaintiff ’s horse. The defendant was held liable for cattle-trespass.  A great deal of argument was expended at the trial on whether the defendant had notice of the ferocious disposition of his mare, but Erle, C.J., pointed out that, however relevant that might have been in a scienter action, it was beside the mark in one for cattle-trespass. [7]

continuing trespass (1822) A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.

criminal trespass (16c) 1. A trespass on property that is clearly marked against trespass by signs or fences. 2. A trespass in which the trespasser remains on the property after being ordered off by a person authorized to do so.

innocent trespass (18c) A trespass committed either unintentionally or in good faith.

joint trespass (17c) A trespass that two or more persons have united in committing, or that some have actually committed while others commanded, encouraged, or directed it.

permanent trespass (1871) A trespass consisting of a series of acts, done on consecutive days, that are of the same nature and that are renewed or continued from day to day, so that the acts in the aggregate form one indivisible harm.

simple trespass (17c) Criminal law. Trespass classified as a minor criminal offense.

trespass ab initio (18c) An entry on land that, though begun innocently or with a privilege, is deemed a trespass from the beginning because of conduct that abuses the privilege. [3]

1. A trespass from the beginning. A trespass by retrospective operation, the principle being that where an entry, authority, or license is conferred by law under which conduct otherwise constituting a trespass may be justified, an abuse of such authority will destroy the privilege and render the act done in excess of authority, a trespass from the beginning, that is, from the time of the entry. 52 Am J1st Tresp § 19. [2]

trespass by relation (18c) A trespass committed when the plaintiff had a right to immediate possession of land but had not yet exercised that right.  *  When the plaintiff takes possession, a legal fiction treats the plaintiff as having had possession ever since the accrual of the right of entry.  This is known as trespass by relation because the plaintiff’s possession relates back to the time when the plaintiff first acquired a right to possession.

trespass de bonis asportatis [Latin “trespass for carrying goods away”] (17c) 1. A wrongful taking of chattels.  *  This type of trespassory taking was also an element of common-law larceny.  2. At common law, an action to recover damages for the wrongful taking of chattels. — Abbr. trespass d.b.a.  — Often shortened to trespass de bonis.  — aka trespass to personal property. [3]

1. The common-law form of action for the recovery of damages resulting from the taking of chattel property from the possession of the plaintiff. 52 Am Jlst Tresp § 2. [1]

trespass on the case (15c) A common-law form of action, otherwise known as “case” and “action on the case,” for an injury resulting from a wrongful act other than physical force, or for an injury resulting from nonfeasance or negligence, or for an injury which is consequential, as distinguished from a direct or immediate, result of the wrongful act. 52 Am J1st Tresp § 5.

A remedy devised by the courts in remote times when actions were so carefully classified that a mistake in name was generally fatal to the case, its purpose being to cover new wrongs as they might occur so as to prevent a failure of justice. 1 Am J2d Actions § 22.

Inclusive in the broad sense of the term of an action of assumpsit. 52 Am J1st Tresp § 6. More precisely, the remedy confined to actions for the redress of torts, the gravamen of the charge being the tort or wrong of the defendant, notwithstanding such tort or wrong may be also a breach of an express or implied contract. 1 Am J2d Actions § 22.
See vis impressa. [1]

1. A common law action for the redress of a tort; the forerunner of a negligence action. [2]

1. At common law, a lawsuit to recover damages that are not the immediate result of a wrongful act but rather a later consequence.  *  The lawsuit was instituted by a writ of trespass on the case. It was the precursor to a variety of modern-day tort claims, including negligence, nuisance, and business torts.  Often shortened to case.  — aka action on the case; breve de transgressione super casum.

     Excerpt from Edwin E. Bryant’s The Law of Pleading Under the Codes of Civil Procedure (2d ed. 1899):

     “The most important of the writs framed under the authority of the statute of Westminster 2 is that of ‘trespass on the case,’ to meet cases analogous to trespass in delict, but lacking the element of direct or immediate force or violence.  This writ gave a form of action in which the court was enabled to render judgment of damages in cases of fraud, deceit, negligence, want of skill, defamation oral or written, and all other injurious acts or omissions resulting in harm to person or property, but wanting the vi et armis, the element of direct force ,and violence, to constitute trespass. [8]

     Excerpt from 1 Am. Jur. 2d Actions 5 23, at 738 (1994):

     “Common law recognizes a distinction between the actions of trespass vi et armis (or simply trespass) and trespass on the case. This distinct-ion has been expressed by stating that a tort committed by the direct application of force is remediable by an action for trespass, while a tort accomplished indirectly is a matter for trespass on the case. Other authority makes the distinction on the basis of the defene dant’s intent, stating that trespass involves a willful and deliberate act while trespass on the case contemplates an act or omission resulting from negligence. [9]

trespass quare clausum fregit [Latin “Why he broke the close”] (17c) The common-law remedy for the recovery of damages for the wrong of intruding upon the real property of another. 52 Am J1st Tresp § 2. [1]

1. Quare clausum fregit is Latin for “because he broke the close.”  See close Trespass quare clausum fregit was the remedy at common law for the recovery of damages for wrongful intrusion upon the real property of another. [2]

1. A person’s unlawful entry on another’s land that is visibly enclosed.  *  This tort consists of doing any of the fol* lowing without lawful justification:

(1) entering on to land in the possession of another,
(2) remaining on the
land, or
(3) placing or projecting any object on it.

2. At common law, an action to recover damages resulting from another’s unlawful entry on one’s land that is visibly enclosed. — Abbr. trespass q.c.f.  — aka trespass to real property; trespass to land; quare clausum querentis fregit.  See trespass vi et armis. [3]

      Excerpt from 3 William Blackstone, Commentaries on the Laws of England 209-10 (1768):

     “Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis fregit.  For every man’s land is in the eye of the law enclosed and set apart from his neighbour’s: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field.  And every such entry or breach of a man’s close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.”  [10]

trespass to chattels (1843) The act of committing, without lawful justification, any act of direct physical interference with a chattel possessed by another.  *  The act must amount to a direct forcible injury. — aka trespass to goods; constructive trespass.

     Excerpt from P.H. Winfield’s A Textbook of the Law of Tort  (5th ed. 1950):

     “Trespass to goods is a wrongful interference with the possession of them. It may take innumerable forms, such as scratching the panel of a coach, removing a tire from a car, injuring or destroying goods, or in the case of animals, heating or killing them, or infecting them with disease. All that is necessary is that the harm done should be direct . . . . [11]

trespass to try title (1826) 1. An action to recover possession of real prOperty and damages for any trespass committed upon such property by the defendant. 52 Am J lst Tresp § 2. An action displacing or supplementing the common-law action of ejectment in some jurisdictions. 25 Am J2d Eject §4. [1]

1. In some states, an action for the recovery of property unlawfully withheld from an owner who has the immediate right to possession. 2. A procedure under which a claim to title may be adjudicated. [3]

trespass vi et armis [Latin “with force and arms”] (17c) The common-law remedy for the recovery of damages inflicted by the direct application of force. 52 Am J1st Tresp § 3.
See vis impressa. [1]

The Latin phrase vi et armis means “by force and arms.” Trespass vi et armis was the remedy at common law for damages inflicted as the result of the use of force. [2]

1. At common law, an action for damages resulting from an intentional injury to person or property, especially if by violent means; trespass to the plaintiff’s person, as in illegal assault, battery, wounding, or imprisonment, when not under color of legal process, or when the battery, wounding, or imprisonment was in the first instance lawful, but unnecessary violence was used or the imprisonment continued after the process had ceased to be lawful.  *  This action also lay for injury to relative rights, such as menacing tenants or servants, beating and wounding a spouse, criminal conversation with or seducing a wife, or debauching a daughter or servant. 2. See trespass quare clausum fregit.  *  In this sense, the “force” is implied by the “breaking” of the close (that is, an enclosed area); even if no real force is used. [3]

trespass-affidavit building (1998) A crime-infested property whose owners or management have filed an affidavit authorizing police to question or arrest anyone who is in the building without permission. [3]

trespasser(14c) 1. A person who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no purpose apparent, other than, perhaps, to satisfy his curiosity. 38 Am J1st Negl § 109. A person who enters upon the land of another and who is neither suffered nor invited to enter. Anno: 36 ALR 37. In the broadest aspect of the term, one who has committed a trespass of any kind or nature. [1]

1. Broadly, a person who commits a trespass. Most commonly, however, the term is applied to a person who enters the land of another without an invitation to do so and whose presence is not suffered.
Compare invitee; licensee. [2]

1. Someone who commits a trespass; one who intentionally and without consent or privilege enters another’s property.  *  In tort law, a landholder owes no duty to unforeseeable trespassers.  Cf. INVITEE; LICENSEE (2). [3]

     Excerpt from R.F.V. Heuston, Salmond on the Law of Torts 278 (17th ed. 1977):

     “The word ‘trespasser’ has an ugly sound, but it covers the wicked and the innocent.  The burglar and the arrogant squatter are trespassers, but so are all sorts of comparatively innocent and respectable persons such as a walker in the countryside who unhindered strolls across an open field.  Perhaps much of the trouble in this area has arisen from ‘the simplisti-0c stereotype’ of the definition. The courts are therefore beginning to recognise that the duty of the occupier may vary according to the nature of the trespasser. [12]

innocent trespasser (1888) Someone who enters another’s land unlawfully, but either inadvertently or believing in a right to do so.

trespass for mesne profits (18c) Hist. An action -supplementing an action for ejectment — brought against a tenant in possession to recover the profits wrongfully received during the tenant’s occupation. [3]

1. A form of action supplemental to ejectment, brought against one wrongfully in possession to recover damages for the disturbance of the plaintiff’s possession together with the profits which accrued during. the wrongful possession. 52 Am J1st Tresp § 2. [1]

trespass notice (1897) 1. A sign warning against trespassing. 2. A written statement given by a store owner to a known or suspected shoplifter not to return to the premises.  Cf. PERSONA NON GRATA LETTER.

trespass de uxore abducto – An action of trespass for the abduction of the wife of the plaintiff. See 3 Bl Comm 139.

trespass per quod consortium amisit – An action of trespass which lay where the defendant. had assaulted or ill-used the wife whereby the plaintiff husband was deprived of her society.
See 2 Bl Comm 140.

trespass per quod servitium amisit –  An action of trespass which lay where the defendant had assaulted or ill-used a servant of the plaintiff whereby plaintiff was deprived of his services.
See 3 Bl Comm 142. [1]


Disclaimer: All material utilized in accordance with Fair Use.

[1]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[2]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[3]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[4]: P.H. Winfield, A Textbook of the Law of Tort § 90, at 307 (5th ed. 1950).

[5]: R.F.V. Heuston, Salmond on the Law of Torts 4 (17th ed. 1977).

[6]: Rollin M. Perkins & Ronald N. Boyce, Criminal Law 405 (3d ed. 1982).

[7]: P.H. Winneld, A Textbook of the Law of Tort § 148, at 518 (5th ed. 1950).

[8]: Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 7 (2d ed. 1899)

[9]: 1 Am. Jur. 2d Actions 5 23, at 738 (1994).

[10]: 3 William Blackstone, Commentaries on the Laws of England 209-10 (1768).

[11]: P.H. Winfield, A Textbook of the Law of Tort § 99, at 345 (5th ed. 1950).

[12]: R.F.V. Heuston, Salmond on the Law of Torts 278 (17th ed. 1977).


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