Harm to Personal Property and Land

Question 1

Trespass to Chattels - Defintion

Answer 1

A defendant is liable for trespass to chattels (i.e., tangible personal property) if he intentionally interferes with the plaintiff’s right of possession by either:

i) Dispossessing the plaintiff of the chattel; or
ii) Using or intermeddling with the plaintiff’s chattel.

Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 2

Trespass to Chattels - Intent

Answer 2

Only the intent to do the interfering act is necessary; the defendant need not have intended to interfere with another’s possession of tangible property.

The doctrine of transferred intent applies to trespass to chattels.

Question 3

Trespass to Chattels - Appropriate Plaintiffs

Answer 3

An action for trespass to chattels may be brought by anyone with possession or the immediate right to possession of the chattel.

Question 4

Trespass to Chattels - Mistake

Answer 4

Mistake of law or fact by the defendant about the legality of his actions is not a defense.

Question 5

Trespass to Chattels - Damages

Answer 5

In a case of dispossession, a plaintiff may recover for:

i) The actual damages caused by the interference; and
ii) The loss of use.

In circumstances of use or intermeddling, the plaintiff may recover only when there are actual damages.

Question 6

Trespass to Chattels - Remedy

Answer 6

The plaintiff may be entitled to compensation for the diminution in value or the cost of repair.

Question 7

Conversion - Defintion

Answer 7

A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff’s damages are the chattel’s full value at the time of the conversion.

Only personal property and intangibles that have been reduced to physical form (e.g., a promissory note) can be converted.

Question 8

Conversion - Intent

Answer 8

The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary. Mistake of law or fact is no defense.
Transferred intent does not apply to conversion.

Accidentally damaging the plaintiff’s chattel is not conversion if the defendant had permission to use the property.

Question 9

Conversion - Interference

Answer 9

The defendant interferes with the plaintiff’s chattel by exercising dominion or control over it.

Note that if the original acquisition of the chattel was not wrongful, then the plaintiff must demand the return of the chattel before she sues for conversion.

Question 10

Distinguishing Conversion from Trespass to Chattels

Answer 10

There is no specific rule as to what behavior constitutes conversion, as opposed to trespass to chattels; it is a matter of degree of seriousness. The following factors are considered:

i) The duration and extent of the interference;
ii) The defendant’s intent to assert a right inconsistent with the rightful possessor;
iii) The defendant’s lack of good faith;
iv) The expense or inconvenience to the plaintiff; and
v) The extent of the harm to the chattel.

Generally, the greater the degree of these factors, the greater the likelihood that a conversion has occurred. Conversion is an exercise of dominion or control over the plaintiff’s personal property such that the court is justified in requiring the defendant to pay the plaintiff the full value of the property.

Question 11

Conversion - Damages

Answer 11

The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

Question 12

Trespass to Land

Answer 12

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the plaintiff’s land.

Question 13

Trespass to Land - Intent

Answer 13

The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass.

Mistake of fact is not a defense.

The doctrine of transferred intent applies to trespass to land.

Question 14

Trespass to Land - Physical Invasion

Answer 14

The defendant need not personally enter onto the plaintiff’s land; intentionally flooding the plaintiff’s land, throwing rocks onto it, or intentionally emitting particulates into the air over the land will each suffice.

Additionally, the defendant’s failure to leave the plaintiff’s property after his lawful right of entry has expired constitutes a physical invasion.

A trespass may be committed on, above, or below the surface of the plaintiff’s land.

Question 15

Trespass to Land - Appropriate Plaintiffs

Answer 15

anyone in actual or constructive possession of land may bring an action for trespass

Question 16

Trespass to Land - Distinguished From Nuisance

Answer 16

Trespass always requires an invasion or intrusion of land; nuisance may or may not involve intrusion.

Trespass protects the possessor’s interests in the land; nuisance protects the use and enjoyment of land.

If no physical object enters onto the plaintiff’s land then the case is generally treated as a nuisance or strict liability action.

Question 17

Trespass to Land - Damages

Answer 17

No proof of actual damages is required.

Question 18

Trespass to Land - Necessity as a Defense

Answer 18

The privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another’s personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. The privilege of necessity applies only to intentional torts to property, including trespass to land, trespass to chattels, and conversion.

Question 19

Trespass to Land - Private Necessity

Answer 19

Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm. The privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner. A defendant is not entitled to exercise this privilege on behalf of another if the defendant knows or has reason to know that the other person is unwilling for the defendant to take such action. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant. Restatement (Second) of Torts § 197.

Question 20

Trespass to Land - Public Necessity

Answer 20

Under the doctrine of public necessity, private property may be intruded upon or destroyed when necessary to protect a large number of people from public calamities, such as the spread of a fire, the spread of a disease, or the advance of a hostile military force.

The privilege is absolute. As long as the defendant acts reasonably, he is not liable for any damage to the property. He is not liable even if the original entry was not necessary, as long as he reasonably believed that the necessity existed. The privilege lasts only as long as the emergency continues.

The privilege is available to private citizens or public officials, should the plaintiff seek to hold a public official personally liable.

Question 21

Nuisance - Private Nuisance - Definition

Answer 21

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land.

Question 22

Private Nuisance - Nature of the Defendant’s Conduct

Answer 22

The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance.

Question 23

Private Nuisance - Appropriate Plaintiffs

Answer 23

Anyone with possessory rights in real property may bring a nuisance claim.

Question 24

Private Nuisance - Substantial Interference

Answer 24

A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. Conversely, a “thick-skinned” plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected.

Question 25

Private Nuisance - Unreasonable Interference

Answer 25

The interference is unreasonable if the injury caused by the defendant outweighs the usefulness of his actions.

Question 26

Private Nuisance - Distinguished from Trespass

Answer 26

1) Physical invasion

Trespass requires a physical invasion of the plaintiff’s property. Nuisance does not require physical invasion, but physical invasion may constitute a nuisance.

2) Substantial interference

Private nuisance requires substantial interference with the plaintiff’s use and enjoyment of her property. Trespass, however, does not require a substantial intrusion.

3) Duration

Generally, a nuisance is continuous. A trespass may be a one-time event, episodic, or continuous.

Question 27

Private Nuisance - Access to light

Answer 27

Historically, courts have refused to find the obstruction of sunlight as creating a private nuisance.

Question 28

Private Nuisance - Defenses to Private Nuisance

Answer 28

Apart from challenging the elements of nuisance, the defenses available to a defendant turn on whether the defendant’s conduct is intentional, reckless, negligent, or abnormally dangerous. For example, the plaintiff’s negligence or assumption of the risk may be a defense to a nuisance (or reduce recovery in a comparative?fault jurisdiction).

1) Regulatory compliance

The fact that a defendant complies with a statute, local ordinance, or administrative regulation is not a complete defense to a nuisance action. However, such statutory or regulatory compliance may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of her land is unreasonable. For example, zoning regulations are typically regarded as admissible evidence in actions for nuisance, but they are not determinative.

2) Coming to the nuisance

It is generally not a defense that the plaintiff “came to the nuisance” by purchasing property in the vicinity of the defendant’s premises with knowledge of the nuisance operated by the defendant. However, the fact that the plaintiff moved to the nuisance is not irrelevant; it may be considered by the jury in determining whether the plaintiff can recover for the nuisance.

Conversely, ownership of land prior to the defendant’s entry into the neighborhood will not, by itself, make the defendant’s action a nuisance. The test is whether the defendant’s action is unreasonable.

Question 29

Public Nuisance - Defintion

Answer 29

A public nuisance is an unreasonable interference with a right common to the general public. (Note: Public nuisance does not necessarily involve land, but it is included in this part of the outline because of its common historical roots with private nuisance.) Typical examples of public nuisance include air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public’s use of parks or other public property.

A private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public.

In most instances, state statutes or local ordinances specifically declare something to be a public nuisance, such as running a house of ill repute or a disorderly tavern, gambling on Sundays, or growing certain types of thorny bushes.

Public authorities can either (i) seek injunctive relief to abate (prevent the continuation of) the public nuisance or (ii) criminally prosecute the defendant.

Question 30

Applying principles derived from the law of private nuisance

Answer 30

The law of public nuisance is extremely vague and varies greatly from one jurisdiction to another. However, the modern trend is to transpose much of the law governing private nuisance onto the law of public nuisance, including the required nature of a defendant’s conduct and available defenses.

Question 31

Remedies for Nusiance - Damages

Answer 31

The usual remedy for nuisance is damages. All resulting harm is recoverable, including damages for reduction in the value of real property, personal injury, and harm to personal property.

1) Utility of the defendant’s conduct

Even if the utility of the defendant’s conduct outweighs the gravity of the harm, damages (but not injunctive relief) may be available if the harm is serious and the financial burden of compensating for the harm would not make the defendant’s continuing conduct unfeasible. In other words, while it may be reasonable for the defendant to engage in the conduct, it is unreasonable for the defendant to do so without paying for the harm done.

2) Continuing nuisance

If the nuisance is a continuing one and the court deems it “permanent,” then the court will award the plaintiff all past and future damages, which prevents plaintiffs from returning to the court to collect damages in the future.

Occasionally, courts award temporary damages measured by the damages that have occurred prior to trial and within the statute of limitations. In these instances, plaintiffs may return to the court in the future to collect additional temporary damages if the nuisance continues.

Question 32

Remedies for Nuisance - Injunctive Relief

Answer 32

If monetary damages are inadequate and the nuisance would otherwise continue, then courts may grant injunctive relief. In determining whether an injunction is appropriate, the courts will “balance the equities”; that is, weigh the social utility of the defendant’s conduct against the harm caused to the plaintiff and others. However, the court need not consider the relative hardships if the defendant’s sole purpose was to cause harm to the plaintiff or to violate the common standards of decency (sometimes called a “spite nuisance”).

Question 33

Abatement - Private Nuisance

Answer 33

A person may enter another’s land to abate a private nuisance after giving the defendant notice of the nuisance and the defendant refuses to act. The amount of force used may be only that which is reasonable to abate the nuisance; the plaintiff is liable for any additional damage.

Question 34

Abatement - Public Nuisance

Answer 34

One who is entitled to recover for a public nuisance has the right to abate that nuisance by self-help, as one would with a private nuisance. However, in the absence of unique injury, a public nuisance may be abated only by a public authority.