Which of these cases constitute trespass to land?
- The D blows cigarette smoke onto the P’s land. The d Knows that the smoke will go on the land. Trespass to land????
- Act – The voluntary movement of the body (blowing the smoke) led to the intrusion.
- Physically going on the land – The smoke went into the plaintiff’s airspace.
- Remaining on the land – There would be particles of smoke that would possibly remain on the property
- Going to a prohibited portion of the land – It would be reasonable to assume that the plaintiff would state that any point at which the smoke crossed his/her property line, this would constitute a prohibited portion of the land
- Possession – Element is satisfied
- Intent to intrude – The defendant knows the smoke will go onto the land
- Causation – The defendant was the substantial factor in producing the intrusion in concert with the air current.
Conclusion: All 5 elements are satisfied. The plaintiff’s airspace has been violated. This is a trespass.
- 2. The D has a tree on her property close to the property line with the P. When the tree was planted, it was entirely on the D’s land. Fifteen Years later, some of the branches have extended into the P’s land. Trespass to land?
The branches are violating the airspace of the plaintiff. This is considered the same as physically entering the land. It is no defense for the defendant to think he/she had a reasonable right to allow the branches to grow into the airspace. The plaintiff can assert that he/she has a reasonably beneficial use of this airspace. For example: Planning to place a storage shed in the area obstructed by the branches.
Conclusion: This is a trespass.