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On Behalf of | Jan 7, 2019 | Real Estate Law |

A landowner is typically entitled to the exclusive possession and enjoyment of his/her land. But vigilance is required to protect those rights, especially where there are unauthorized encroachments by neighboring land owners, which can constitute a trespass.

A trespasser is “one who enters or remains upon land in the possession of another without a privilege to do so.” Gage v. Westfield, 26 Mass. App. Ct. 681, 695 n. 8 (1988), citing Restatement (Second) of Torts § 329 (1965). In order to prevail on a trespass claim, a plaintiff/land owner must prove: (1) the plaintiff has actual and lawful possession of the property and (2) the defendant’s entry was intentional and illegal. See New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943); see also Edgarton v. H.P. Welch Co., 321 Mass. 603, 612-13 (1947) (requiring a voluntary act of entry for trespass); Restatement (Second) of Torts, § 157. Thus, a trespass action is based on the lawful possession of land by a plaintiff, not title or any specific right of property. See New England Box Co. v. C & R Const. Co., 313 Mass. 696, 707 (1943).

Unlike other intentional torts, damages are not an essential element to the tort of trespass. See Old Colony Donuts, Inc. v. American Broad Cos., Inc., 368 F. Supp. 785 (D.Mass. 1974). Thus, an action can be brought even where a trespass causes no injury. See Van Szyman v. Auburn, 345 Mass. 444 (1963) (since there was no damage from trespass to unplug a drain, nor any basis for concluding it was more than nominal, award of nominal damages not required). However, where a trespass is continuing and wrongfully interferes with the legal rights of the owner, permanent injunctive relief to enjoin the trespass is appropriate, even where no permanent injury occurs. Ferrone v. Rossi, 311 Mass. 591, 593 (1942). This is because “real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land.” Greenfield Country Estates Tenants Ass’n., Inc. v. Deep, 423 Mass. 81, 88 (1996).

Of course, where injury does result from a trespass, the full range of tort damages may be awarded, depending on the nature of the injury. Thus, a plaintiff is entitled to recover fair compensation for the damage proved by him to have been caused by the defendant’s wrongful act, including damages for injury to land and lost profit from interference with business. See Flower v. Billerica, 320 Mass. 193, 195-199 (1946) (recovery of lost profits of owner of way in business of selling water to abutters in pipes in way). Emotional distress damages are recoverable as well. See Meagher v. Driscoll, 99 Mass. 281, 285 (1868) (defendant cemetery superintendent, under the misapprehension that the plaintiff had not paid for a lot he claimed, removed remains of the plaintiff’s deceased child from cemetery lot and sold the lot to another party). Where the trespass is continuous but not permanent, the trespass affects the entire property, and the condition of the property after the trespass is substantially the same as before, the measure of damages is the loss in rental income of the property. Belkus v. City of Brockton, 282 Mass. 285, 288 (1933). Where the trespass is permanent, such as the erection of a structure encroaching on land, a plaintiff “is ordinarily entitled to mandatory equitable relief to compel removal of a structure… even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place.” Brandao v. Docanto, 80 Mass. App. Ct. 151, 158 (2011). To limit a remedy to anything short of removal amounts to sanctioning “private eminent domain.” Id. at 161.

As discussed in previous blog posts, there are two Massachusetts statutes that provide for treble damages for trespassory conduct. One is G. L. c. 242, § 7., which provides for treble damages for one who willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on another’s property unless they had good reason to believe the land was their own or that the act was otherwise lawfully authorized. As damages, “[a] plaintiff may opt for either the value of the timber cut or the diminution in value of his property… [but] if the latter measure does not fairly measure his damages, he may permissibly opt for restoration cost damages.” Glavin v. Eckman, 71 Mass. App. Ct. 313, 319 (2008). See also Ritter v. Bergmann, 72 Mass. App. Ct. 296 (2008) ( “restoration” and “replacement cost” damages include costs of site preparation, individual selection and planting of trees, and one-year warranty on each tree). The second statute authorizing treble damages is G. L. c. 242, § 7A, which provides for treble damages against a person who, without permission, willfully enters agricultural or horticultural land of another and “carries away, takes, steals, mutilates, destroys, damages, causes to be damaged, or cuts” any agricultural commodity, including trees.

The zoning and land use practice group at Phillips & Angley has decades of experience in boundary disputes, trespass claims, title claims for adverse possession, prescriptive easements and other actions to clear title to land.

If you believe that you have suffered injury due to trespass by a third party, the attorneys at Phillips & Angley can assist in assessing your situation.

Written by Jeffrey T. Angley, Esq.

Copyright (c) 2018 -2019 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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