Archives : tresspassing
By: Michael D. Grahn, Attorney at law and Helen Kim
In Yeidling v Riley, Plaintiff Yeidling was looking for campus housing and wanted to know the current status of the defendants property. As he entered the defendants property to inquire its current housing status, he stepped on a concrete cylinder on the ground and fell. The plaintiff held that he was classified as an invitee and hence demanded compensation from the landowner while the defendant claimed that the plaintiff was a trespasser and hence the landowner should not be held liable for the plaintiffs criminal actions. 705 So. 2d 426 (Ala. Civ. App. 1997)
What is a Trespasser?
A person is a trespasser where he enters on the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or person in charge or any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge. As otherwise expressed, a trespasser is a person entering or remaining on land in another’s possession without privilege to do so, created by the possessor’s consent or otherwise. Id., at 429.
What is a Licensee?
A person is a licensee where he enters on the property of another with the landowners consent or as the landowners guest. A social guest is typically considered a licensee.
Who is an Invitee?
A person is an invitee where he enters on the property of another with the landowners consent to bestow some material or commercial benefit upon the landowner. A business guest is typically considered an invitee.
The Court in Yeidling determined that the property owner was not negligent and did not owe the plaintiff any duty of care to warn of potential dangers posed by the concrete cylinders to the plaintiff because the plaintiff was a trespasser. The plaintiff entered the property out of curiosity, to inquire about the rental status of the property, without first contacting the landowner or letting the landowner know of his presence, and hence the plaintiff had no permission or privilege to be on the property. Id. The Court did not agree with the plaintiff that he was an invitee because the owner would have been aware of the plaintiffs presence on the property had there been a business relationship between the two parties. If the defendant had pressed charges against the plaintiff, the plaintiff could have been fined for trespassing. Hence, if an individual wanders onto another persons property without the owners invitation or consent, and without a business or commercial purpose, then the individual may be classified as a trespasser.
In Dance v Commonwealth, a security guard observed Dance remove a tube of Benadryl and a tube of Lanasor cream from their respective packaging, and place the tubes into his pocket. After wandering around the store, Dance exited the store without purchasing any merchandise. However, before exiting the store, Dance emptied his pockets and removed the tube of Benadryl and Lanasor cream into a basket at the front of the store. 2003 Va. App. LEXIS 393. Although Dance did not actually walk out of the store with the Benadryl and Lanasor cream tubes, the Court agreed with the opinion in Bryant v Commonwealth 455 S.E.2d 667, 670 (Va. 1994) and determined that Dance committed trespass by invading the stores constructive possession by removing the items from their packaging and by removing the alarm sensors. Furthermore, any movement of the trespassed property, no matter how slight the movement, was evidence of asportation (the act of removing a property), a necessary element of larceny. Id. at 4. Thus, if an individual removes an item from its original packaging, the individual is trespassing on the stores property and any slight movement by the individual with the property becomes evidence of asportation, potentially leading to more serious crimes like larceny.
Bozeman Mortuary Association v. Fairchild et al. introduces another type of a trespasser: the unintentional trespasser. Unintentional trespassers come into possession of anothers property innocently. In Fairchild, a stolen car was sold to a sheriff, who then sold it to his son-in-law, Fairchild. The original owner of the car sought to reclaim the car and damages that he had incurred while the car was stolen. 68 S.W.2d 756 (Ky. Ct. App. 1934). The Court determined that Fairchild did not know that the car was stolen and hence he was an unintentional trespasser. However, the unintentional trespasser is stripped of his right to the property and acquires no greater right than the thief. The Court stated,
Public welfare and public policy will not allow one to assert any rights to stolen property or to anything he spends or puts on it as against the owner. To hold otherwise would be to encourage the nefarious business of handling stolen automobiles which has grown to such amazing and alarming proportions. Id. at 760.
Accordingly, if an individual comes into possession of a stolen item without knowledge of its illegitimacy, the individual becomes an unintentional trespasser. Furthermore, if the original owner of the property seeks to reclaim his property, the unintentional trespasser must return the property to the owner because the original owners rights to the property were erroneously and criminally taken from him by the thief. In such cases, the only recourse the unintentional trespasser has is to seek compensation from the thief or the person whom he purchased the stolen goods from, which more times than not, has unsatisfactory results.
In United States v. Montgomery, the defendant was found to be trespassing on government land by allowing his cattle to graze on the land. 155 F. Supp. 633 (Mont. Dist. Ct. 1957). The defendant responded that he was not financially capable of building a fence to divide the two properties and that he monitored his livestock to the best of his ability. The defendant moved to dismiss the suit because he claimed that his actions were inadvertent and innocent. Id. However, the court stated that, an act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. Id., at 636. Thus an individual who inadvertently trespasses onto another persons property is not exempt from punishment merely because his actions are innocent.
Innocent acts such as a customer inspecting an item outside of its packaging, a buyer purchasing a used item from an unknown source, or a curious spectator inspecting a neighbors flower garden are performed with innocuous motivations. However, such inadvertent actions may be considered trespassing and could lead to graver criminal circumstances.
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