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The law distinguishes two kinds of trespass; trespass to land and trespass to chattel.


Trespass to land is defined as an intentional entry on another’s land. Trespass to land is set out to protect the landowner’s right to exclusive possession. In theory a person who owns a piece of land or has the right of possession in that piece of land also has the right to exclude others and the law of trespass protects this right to exclude. In order to establish trespass to land the plaintiff must establish that he (1) had possession or the right to possession (2) of the land in question and (3) that the defendant interfered with that possessory interest.


It is not necessary to show that the trespasser knew that he was trespassing, but an intent to enter the particular land (even if he didn’t know it was private property) is necessary. Casting objects on a plaintiff’s land (such as building a barn or erecting a statue) might also constitute “entry” and satisfy the elements of trespass to land.


If there is an emergency situation a person may be privileged to enter another’s property to protect his own person or property without being held responsible for the trespass (an emergency entry does not constitute trespass in this situation because it is a privileged entry.) Even in an emergency situation any damage done to the property must be repaid by the person entering. Damages for trespass to land may be recovered for any injury to the land but even if there was no actual harm done damages are due simply for the act of trespassing.


Trespass to chattels describes acts that interfere with a person’s possession of real property (not land). To have an action in trespass to chattels the plaintiff has to show (1) actual damage or actual interference (2) with his possessory rights (3) in real property.


Generally any type of personal property that is capable of private ownership can be subject to an action in trespass. Court however require in the majority of cases that the property involved be at least a partially tangible property (ideas or thoughts in written documents would generally not qualify). Damages are assessed based on the actual amount of damages or the value of the loss of the object’s use.


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