TRESPASS TO LAND

"Trespass to property is the unlawful intereference with its posession. . . . In some situations, it is a crime as well as a tort. . . . The tort may be committed by an act which is intentional, reckless or negligent, or is the result of ultrahazardous activity. . . . (Citations omitted.)

"A trespass may be on the surface of the land, or above it. . . . An encroachment on the space above land, as by trees, roots, or an overlapping portion of a building, is a continuing trespass, which may amount to a nuisance. The injured party may recover damages already suffered and an injunction. . . . The invasion may also be below the surface." For example, slant drilling for oil under another's land is a trespass. 5 Summary of California Law 704, 705 (Witkin, 9th edition 1988).

In some instances the court will order the removal of an encroachment structure. In determining whether there should be a removal, the court will balance the hardships, i.e. the court will weigh the relative hardships to the adjoining landowners. "As a general rule the plaintiff is not entitled to injunctive relief compelling the removal of an encroachment, in the absence of a showing that the defendant acted intentionally and in bad faith. . . ." 5 California Real Estate 2d 329, et seq. (Miller & Starr, 1989.) The issuance of an order compelling removal of an encroachment is called a mandatory injunction and the granting or denying of this type of injunction "depends upon a consideration of all equities between the parties. No hard and fast rule can be adopted which will fit all cases and hence each must be determined upon its own peculuiar facts." Pahl v. Ribero (1961) 193 CA2d 154, 161.

CAVEAT: Please consult an attorney for legal advice. Laws in the United States differ from one jurisdiction to another. Any law stated herein is for educational purposes only and may not apply to your particular circumstance.

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