§ 30.01 The Right to Exclude [485-486]

 

As the Supreme Court has explained, the right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”  Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). 

 

§ 30.02 What Is a Trespass? [486-488]

 

At common law, any intentional and unprivileged entry onto land owned or occupied by another constituted a trespass.  The element of intent has a special meaning in trespass law.  A trespasser is strictly liable; good faith and fault are irrelevant.  The doctrine only requires that the defendant intend to enter the land as a matter of her free choice, not that she had an intent to trespass.  The modern law of trespass largely follows the common law approach. 

 

§ 30.03 Trespass and Rights of Migrant Farmworkers [488-489]

 

In State v. Shack, 277 A.2d 369 (N.J. 1971), the New Jersey Supreme Court held that the ownership of a farm did not include the right to exclude government employees who were providing health and legal services to migrant workers living on the farm.

 

§ 30.04 Trespass and Freedom of Speech [489-491]

 

The First Amendment protects the right of freedom of speech from government action, not private action.  Accordingly, the Constitution does not require a private landowner to open his land to demonstrators or others who wish to exercise the right of free speech, even if the land is a shopping center or is otherwise generally open to the public.  However, some states have interpreted their state constitutions to provide that shopping center owners cannot bar such free speech activities.

 

§ 30.05 Trespass and Beach Access [491-492]

 

Under the public trust doctrine, state governments typically control wet-sand beaches below the mean high tide line; accordingly, the public is free to use these beaches.  Some jurisdictions allow the public to use the dry sand beach as well—even if it is privately owned—based on customary rights, the public trust doctrine, or other theories.

 

§ 30.06 Encroachments [492-493]

 

An encroachment is a permanent or continuing trespass caused by the construction of a building or other improvement that partially extends onto another’s land.  The common law treated the encroachment like any other trespass; the successful plaintiff was allowed to choose either damages or an injunction forcing removal of the encroachment.   But where the encroachment results from a good faith mistake and the injury to the plaintiff is relatively minor, most modern courts will refuse an injunction and only award damages.

 

§ 30.07 Good Faith Improvers [493]

 

Most states provide relief to the good faith improver—one who improves land owned by another under the mistaken but good faith belief that he owns it.  For example, many states allow the good faith improver to either (1) remove the improvements or (2) receive compensation equal to the amount by which the improvements increase the market value of the land.