Trespass: Some ideas and Considerations on the Subject of Trespass

[15] The law of trespass recognizes the interest in possession and control of one's property and for that reason permits exclusion of unwanted intruders. But it does not follow that the right to exclude conferred by trespass law embodies a privacy interest also protected by the Fourth Amendment. To the contrary, the common law of trespass furthers a range of interests that have nothing to do with privacy and that would not be served by applying the strictures of trespass law to public officers. Criminal laws against trespass are prophylactic: they protect against intruders who poach, steal livestock and crops, or vandalize property. And the civil action of trespass serves the important function of authorizing an owner to defeat claims of prescription by asserting his own title. See, e. g., O. Holmes, The Common Law 98-100, 244-246 (1881). In any event, unlicensed use of property by others is presumptively unjustified, as anyone who wishes to use the property is free to bargain for the right to do so with the property owner, cf. R. Posner, Economic Analysis of Law 10-13, 21 (1973). For these reasons, the law of trespass confers protections from intrusion by others far broader than those required by Fourth Amendment interests.” Oliver v. United States, 466 US 170 - Supreme Court 1984[footnote verified]

“The Alabama courts hold the choice between Secs. 21 and 26 depends upon whether the wrongful act alleged is a trespass or trespass on the case. Smith and Gaston Funeral Directors v. Dean, 262 Ala. 600, 80 So.2d 227 (1955). The distinction is peculiarly applicable here. Appellants' claim of liability against Major Cameron and Windle rests on trespass — they are the actors charged with committing bodily injury — and the claim against the sheriff rests in trespass, if the two actors were deputized and acting under color of office (Holland v. Fidelity and Deposit Co. of Maryland, supra). But appellants' claim is much broader than trespass. They seek to catch in their sweep Highway Patrolman King (who is not charged with being a participant in the shooting or with being a deputy), Hugh Cameron (who it is alleged was deputized but is not alleged to have participated), and the sheriff (without regard to whether the alleged participants were authorized or deputized). They cannot seek these areas of relief, bringing in additional parties and broadening the liability of the parties charged with trespass, all on the ground of conspiracy, without the application to this broader claim of the statutory period that the courts of Alabama would apply in a conspiracy case. The conspiracy aspect is an action on the case to which the one-year statute applies.” Beard v. Stephens, 372 F. 2d 685 - Court of Appeals, 5th Circuit 1967 [verified google scholar 7-12]

“Two Alabama statutes govern the limitations periods for bringing personal injury suits. The six-year statute, ALA.CODE § 6-2-34(1) (1975), governs all actions 1254*1254 "for any trespass to person or liberty, such as false imprisonment or assault and battery." The one-year statute, ALA. CODE § 6-2-39(a)(5) (1975), applies to actions "for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section."[3] The choice between these two statutes depends upon whether the wrongful act constitutes a trespass or a trespass on the case: Section 6-2-34(1) governs trespass actions while Section 6-2-39(a)(5) governs trespass on the case.
C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So.2d 166 (1961);
Smith and Gaston Funeral Directors v. Dean, 262 Ala. 600, 80 So.2d 227 (1955);
Pennick v. City of Florala, 529 F.2d 1242 (5th Cir.1976);
Beard v. Stephens, 372 F.2d 685 (5th Cir.1967).
The choice of the proper and analogous Alabama statute for purposes of Section 1983 claims will depend, then, on whether the "personal injury" that is the essential nature of all Section 1983 claims is more akin to trespass or trespass on the case. This calls for some elaboration on the "essential nature" of Section 1983 claims and is therefore a question of federal law, but one that may be informed by the state law definition of trespass and trespass on the case.

Under Alabama law, trespass involves an intentional act done with force and immediately injurious to the person of another or to property in his or her possession. Trespass on the case would lie when the wrongful act causes harm only indirectly and without an intentional act of force. [4] W.T. Ratliff Co., Inc. v. Henley, 405 So.2d 141 (Ala.1981).
Trespass requires intentional or "wanton" causation of injury as opposed to mere negligence,
City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682 (1972);
Cochran v. Hasty, 378 So.2d 1131 (Ala.Civ.App.1979),
or an omission of a duty to act. Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973).
Liability based on respondeat superior is framed as trespass on the case.
C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So.2d 166 (1961).Jones v. Preuit & Mauldin, 763 F. 2d 1250 - Court of Appeals, 11th Circuit 1985 [verified google scholar]

“The judge then explained to the jury that his decision was based on the common law distinction between trespass and trespass on the case, stating that the plaintiff had sued in trespass when he should have sued in negligence.” Rushing v. Hooper-McDonald, Inc., 300 So. 2d 94 - Ala: Supreme Court 1974 [verified google scholar 7-12]

“The general rule is that whenever there is a breach of contract, see cases cited in G. Harris, Pleading and Practice in New Jersey 46*46 316 n. 33 (rev. ed. 1939), or an invasion of a legal right, the law ordinarily infers that damage ensued, and, in the absence of actual damages, the law vindicates the right by awarding nominal damages. Spiegel v. Evergreen Cemetery Co., supra, 117 N.J.L. at 93.

The difference in the treatment of these torts is attributable to the historical distinction between the common-law writs of trespass and trespass on the case. In early English common law, both writs were available to redress tortious harm. Trespass, as distinguished from trespass on the case, was considered quasi-criminal in nature and was the remedy for forcible, direct, and immediate injuries to persons or property. It had a basic criminal character since it was directed at breaches of the King's peace and it was on this ground that the royal courts assumed jurisdiction. Damages were first awarded to the injured plaintiff as an incidental aspect of the criminal proceeding. 1 F. Harper & F. James, The Law of Torts § 1.3, at 7-8 (1956); W. Prosser, Handbook on the Law of Torts § 7, at 28-29 (4th ed. 1971). Proof of actual damage was not required because invasion of the plaintiff's rights was regarded as the tort in itself. W. Prosser, supra, § 7, at 29.

Trespass on the case, on the other hand, developed as a supplement to trespass to afford a remedy for injury resulting indirectly. The classic illustration of the difference involves that of a log thrown onto a highway. If a person were struck by the log, trespass would lie. If he fell over the log as it lay on the road, the action would be on the case. Leame v. Bray, 102 Eng.Rep. 724, 726 (1803); Reynolds v. Clarke, 92 Eng.Rep. 410, 413 (1725). The distinction was not between intentional and negligent conduct, but was based instead on the causal sequence and the directness of the harm. In trespass on the case there could ordinarily be no liability unless actual damage was proven. 2 W. Wait, Actions and Defenses 99-102 (1877); see also W. Prosser, supra, § 7, at 28-30.

47*47 For the most part, these procedural distinctions between trespass and trespass on the case have disappeared. However, a vestige of the distinction between the two has remained with respect to the requirement of proving actual damage. As Dean Prosser has observed: "[W]hether such damage is essential to the existence of a cause of action for a particular tort may depend very largely upon its ancestry in terms of the old procedure." W. Prosser, supra, § 7, at 30; see 1 F. Harper & F. James, supra, § 1.3, at 7-11. Some "case" actions that have continued to require proof of actual damage are slander of title, disparagement of goods, and slander that is not per se. C. McCormick, Handbook on the Law of Damages § 22, at 89 (1935). However, in other actions on the case, courts have not adhered to the common-law distinction and have sustained actions in the absence of proof of compensatory damage. These include libel, slander per se, nuisance, and malicious prosecution. Id. at 90.

We have not hesitated to modify the common law when it is no longer fair and equitable or does not serve a useful purpose. Justice Jacobs, in striking down a common-law rule requiring unanimity of arbitrators' awards, stated in La Stella v. Garcia Estates, 66 N.J. 297, 305 (1975);

Whatever validity the common law rule may originally have had, it is clear to us that it has no proper place in current times. This Court has not hesitated to reject common law doctrines which have outlived their usefulness and which no longer serve justice or the interests of society. See Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958); Smith v. Brennan, 31 N.J. 353 (1960); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960); France v. A.P.A. Transport Corp., 56 N.J. 500 (1970).

See also Canino v. New York News, Inc., 96 N.J. 189, 192 (1984); Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 220 (1979).

Although distinctions based on common-law writs may once have been appropriate, the requirement of actual damage to sustain a cause of action for intentional torts no longer serves a useful purpose, at least where a victim of an intentional wrong has suffered some loss, detriment, or injury but is 48*48 unable to prove that he is entitled to compensatory damages. His rights have been invaded and he should be entitled to vindication in an award of nominal damages. [3] Indeed, it is difficult to justify permitting nominal damages in a trespass action and not in a case of a willful and malicious intentional tort. We hold, therefore, that compensatory damages are not an essential element of an intentional tort committed willfully and without justification when there is some loss, detriment, or injury, and that nominal damages may be awarded in such cases in the absence of compensatory damages.” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477 A. 2d 1224 - NJ: Supreme Court 1984 [verified google scholar 7-12]


“As early as 1791, this Court recognized that damages may appropriately be awarded "for example's sake, to prevent such offences in future * * * [and] as would mark [the jury's] disapprobation * * *." Coryell v. Colbaugh, 1 N.J.L. 90, 91 (Sup.Ct.) (emphasis in original). Subsequent cases reaffirmed 49*49 our commitment that punitive or exemplary damages can be awarded to punish aggravated misconduct by the defendant and to deter him and others from repeating it. E.g., Leimgruber, supra, 73 N.J. at 454; DiGiovanni v. Pessel, supra, 55 N.J. at 190-91; Berg v. Reaction Motors Div., 37 N.J. 396, 413-14 (1962); Magee v. Holland, 27 N.J.L. 86, 97-98 (Sup.Ct. 1858); Cabakov v. Thatcher, 37 N.J. Super. 249, 259 (App.Div. 1955). As Chief Justice Gummere observed many years ago in Dreimuller v. Rogow, 93 N.J.L. 1, 3 (Sup.Ct. 1919):

The purpose of the award being to punish the wrongdoer, no reason is perceived for holding that the power to inflict punishment is dependent to any extent upon the form of the action by which the injured party seeks redress for the wrong done him by the malicious or wanton trespass committed against his property.” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477 A. 2d 1224 - NJ: Supreme Court 1984 [verified google scholar 7-12]

To warrant a punitive award, the defendant's conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an "evil-minded act" or an act accompanied by a wanton and willful disregard of the rights of another. DiGiovanni v. Pessel, supra, 55 N.J. at 191. In Berg v. Reaction Motors Div., supra, 37 N.J. at 414, this Court said:   Professor McCormick suggests that in order to satisfy the requirement of willfulness or wantonness there must be a "positive element of conscious wrongdoing." See McCormick, supra, at p. 280. Our cases indicate that the requirement may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences. See King v. Patrylow, 15 N.J. Super. 429, 433 (App.Div. 1951); cf. Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960); Egan v. Erie R. Co., 29 N.J. 243, 255 (1959); Tidewater Oil Co. v. Camden Securities Co., 49 N.J. Super. 155, 164 (Ch.Div. 1958). See also Staub v. Public Service Railway Co., 97 N.J.L. 297, 300 (E. & A. 1922). Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477 A. 2d 1224 - NJ: Supreme Court 1984 [verified google scholar 7-12]

Footnote: “Art. 5687.  There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
  1. Actions of trespass for injury done to the estate or the property of another.
  2. Actions for detaining the personal property of another, and for converting such personal property to one's own use.
  3. Actions for taking or carrying away the goods and chattels of another.
  4. Actions for debt where the indebtedness is not evidenced by a contract in writing.
  5. Actions upon stated or open accounts, other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents. In all accounts, except those between merchant and merchant, as aforesaid, their factors and agents, the respective times or dates of the delivery of the several articles charged shall be particularly specified, and limitations shall run against each item from the date of such delivery, unless otherwise specially contracted.
  6. Action for injury done to the person of another.
  7. Action for injury done to the person of another where death ensued from such injury, and the cause of action shall be considered as having accrued at the death of the party injured.

Art. 5688.  There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

  1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.
  2. Actions for the penalty or for damages on the penal clause of a bond to convey real estate.
  3. Actions by one partner against his copartner for a settlement of the partnership accounts, or upon mutual and current accounts concerning the trade of merchandise between merchant and merchant, their factors or agents, and the cause of action shall be considered as having accrued on a cessation of the dealings in which they were interested together.

Art. 5690.  Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward. GO>   Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300 (1937) “Corsicana National Bank of Corsicana v. Johnson, 251 U.S. 68 (1919) [verified]

“The right of the jury in some cases to award exemplary or punitive damages is no longer an open question in this Court.  In GO>Day v. Woodworth, 13 How. 371, which was an action of trespass for tearing down and destroying a mill dam, this Court said that in all actions of trespass, and all actions on the case for torts,

A jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff, and that such exemplary damages were allowable "in actions of trespass where the injury has been wanton or malicious, or gross and outrageous."  The general rule was recognized and enforced in Philadelphia, Wilmington & Baltimore Railroad Co. v. Quigley, which, as we have seen, was an action to recover damages against a corporation for libel, in the latter case the Court observing that the malice spoken of in the rule announced in Day v. Woodworth was not merely the doing of an unlawful or injurious act, but the act complained of must have been conceived "in the spirit of mischief, or of criminal indifference to civil obligations."  [122 U.S. 610]

●See also Milwaukee & St. Paul Railway v. Arms, 91 U.S. 489, 492; Missouri Pacific Railway v. Humes, 115 U.S. 512, GO>521, and Barry v. Edmunds, 116 U.S. 550, GO>562-563.” Denver & Rio Grande Railway v. Harris, 122 U.S. 597 (1887) [verified]

“The case not being one which called for vindictive or exemplary damages, the circuit court charged the jury that the plaintiffs were entitled to recover such damages as they had proved themselves entitled to on account of the actual injury sustained by the seizure and detention of the goods.  And in ascertaining what these damages were, the court directed it that the plaintiffs had a right to recover the value of the goods (teas) at the time of the levy, with interest from the expiration of the usual credit on extensive sales.  This was in conformity to the decision of this Court in the case of Conard v. Nicoll, 4 Pet. 291.

This was an action of trespass de bonis asportatis brought by the Pacific Insurance Company of New York against John Conard, Marshal of the Eastern District of Pennsylvania. [31 U.S. 263]

The plaintiffs declared in the common form of trespass, specifying the goods and chattels seized and taken by the defendant, to-wit, sundry packages of teas of the value, altogether, of upwards of $60,000, and laying the damages at $120,000.

To this declaration the defendant pleaded the general issue, and also pleaded specially 1. that on the 1st of May, 1828, the plaintiffs received $40,000, paid to him by the defendant in full satisfaction of the trespasses and wrongs complained of; 2. that at the April sessions of the court, 1826, the plaintiffs impleaded him in a plea of trespass to the plaintiffs, damages $40,000, and on 30 April, 1828, by judgment of the court, recovered the same, which is the same trespass complained of in this declaration, which judgment remains in full force, and afterwards, on 30 April, 1828, the said sum of $40,000 was paid to him in satisfaction thereof; 3. that at April sessions, 1826, the plaintiffs impleaded him in a certain plea of trespass to his damage $40,000, being the identical trespass complained of in this suit, and on 30 April, 1828 the said plaintiffs recovered in the said plea by the judgment of the court against the defendant, with six cents damages, and costs which they had sustained by the same trespasses, which judgment remains in force; and that on 30 April, 1828, the sum of $40,000 was paid in full satisfaction thereof.  Upon the first plea, issue was joined.  To the special pleas the plaintiffs replied that they did not receive the sum of $40,000 in full satisfaction of the trespasses and damages complained of, and of the other wrongs in the declaration mentioned, and tendered an issue thereon.  To the third and fourth pleas the plaintiffs replied that they ought not to be barred from maintaining their action by anything alleged in the same, because on 9 October, 1826, a certain bond was executed by the said plaintiffs and by them delivered to and accepted by the United States of America in the following words:

Know all men by these presents that we, the Pacific Insurance Company of New York, are held and firmly bound unto the United States of America in the sum of $60,000 [31 U.S. 264] lawful money of the United States of America, to be paid to the said, the United States of America, their certain attorney, successors, or assigns, to which payment well and truly to be made, and done, we do bind ourselves, and our successors, firmly by these presents.  Sealed with our seal of incorporation, and dated this ninth day of October, in the year of our Lord one thousand eight hundred and twenty-six.” Conard v. Pacific Insurance Company of New York, 31 U.S. (6 Pet.) 262 (1832) [verified]

“Under this statute, the acts of limitations of the several states, where no special provision has been made by Congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts.  The act in question provides:

That all actions hereinafter mentioned, shall be sued or brought within the time hereinafter limited; all actions of trespass for assault, menace, battery and wounding, actions of slander for words spoken or libel, and for false imprisonment, within one year next after the cause of such actions or suits; and all actions of book accounts, or for forcible entry and detainer, or forcible detainer, within four years after the cause of such action or suits; and all actions of trespass upon real property, trespass, detinue, trover and conversion and replevin, all actions upon the case, and of debt for rent, shall be sued or brought within six years next after the cause of such actions or suits.

It is contended that this statute cannot be so construed as to interpose a bar to any remedy sought against an officer of the United States for a failure in the performance of his duty; that such a case could not have been contemplated by the legislature; that the language of the statute does not necessarily embrace it; and consequently the statute can only apply, in cases of nonfeasance or malfeasance in office, to persons who act under the authority of the state and are amenable to it.

It is not probable that the Legislature of Ohio, in the passage of this statute, had any reference to the misconduct of an officer of the United States.  Nor does it seem to have been their intention to restrict the provision of the statute [28 U.S. 278] to any particular causes for which the action on the case will lie.  In the actions of trespass, debt, and covenant specified, the particular causes of action barred by the statute are stated, but this is not done in the action on the case, nor is it done in the action of detinue, trover, and conversion, and replevin.”
McCluny v. Silliman, 28 U.S. (3 Pet.) 270 (1830) [verified]

MR. CHIEF JUSTICE TANEY delivered the opinion of the court.
"This is an action of trespass brought by the defendant in error against the plaintiff in error to recover the value of certain property taken by him in the province of Chihuahua during the late war with Mexico."

American Jurisprudence 2d on Trespass (311 pages)
Penal Code Burglary and Criminal Trespass