Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P12 pptx

Wilson’s loftier Most of the terms of the Treaty of Versailles were set at the Paris Peace Conference, which was dominated by l-r Lloyd George of Great Britain, Vittorio Orlando of Italy

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the corporation income, excise, estate, and gift taxes

U.S Mint

The establishment of a mint was authorized by

an act of April 2, 1792 (1 Stat 246) The Bureau

of the Mint was established by an act of February 12, 1873 (17 Stat 424) and recodified

on September 13, 1982 (31 U.S.C.A §§ 304, 5131) The name was changed to the U.S Mint

by secretarial order dated January 9, 1984

The primary mission of the mint is to produce an adequate volume of circulating coinage for the United States to conduct its trade and commerce The mint also produces and sells numismatic coins, American eagle gold and silver bullion coins, and national medals

The Fort Knox Bullion Depository is the primary storage facility for the nation’s gold bullion

Bureau of the Public Debt

The Bureau of the Public Debt was established

on June 30, 1940, pursuant to the Reorganiza-tion Act of 1939 (31 U.S.C.A § 306) Its mission

is to borrow the money needed to operate the federal government, account for the resulting public debt, and issue treasury securities to refund maturing debt and raise new money

The bureau fulfills its mission through six programs: commercial book-entry securities, direct access securities, savings securities, gov-ernment securities, market regulation, and public debt accounting The bureau issues and AUCTIONS treasury bills, notes, and bonds and manages the U.S Savings Bond Program

The bureau also implements the regulations for the government securities market These regulations provide for investor protection while maintaining a fair and liquid market for government securities

Office of Thrift Supervision

The OFFICE OF THRIFT SUPERVISION (OTS) was established as a bureau of the Treasury Depart-ment in August 1989 and became operational in October 1989 as part of a major reorganization

of the thrift regulatory structure mandated by the Financial Institutions Reform, Recovery and Enforcement Act (103 Stat 183) In that act, Congress gave the OTS authority to charter federal thrift institutions and serve as the primary regulator of approximately 1,700

federal and state-chartered thrifts belonging to the Savings Association Insurance Fund The office’s mission is to regulate savings associations in order to maintain the safety, soundness, and viability of the industry and to support the industry’s efforts to meet housing and other financial services needs The OTS carries out this responsibility through risk-focused supervision that includes adopting regulations governing the savings and loan industry, examining and supervising thrift institutions and their affiliates, and enforcing compliance with federal laws and regulations In addition to overseeing thrift institutions, the OTS also regulates, examines, and supervises holding companies that own thrifts and controls the acquisition of thrifts by such holding companies

The office is headed by a director appointed

by the president and confirmed by the Senate to serve a five-year term The director also serves

on the boards of the FDIC and the Neighbor-hood Reinvestment Corporation

FURTHER READINGS Kaufman, Judith C., ed 2003 United States Department of the Treasury: Current Issues and Background New York: Nova Science.

Treasury Department Available online at http://www ustreas.gov (accessed June 13, 2009).

U.S Government Manual Website Available online at http:// www.gpoaccess.gov/manual (accessed June 13, 2009).

CROSS REFERENCES Alcohol, Tobacco, Firearms, and Explosives, Bureau of; Banks and Banking; Drugs and Narcotics; Estate and Gift Taxes; Federal Budget; Homeland Security Department; Internal Revenue Service; Savings and Loan Association; Smuggling; Tariff; Taxation.

TREASURY STOCK Corporate stock that is issued, completely paid for, and reacquired by the corporation at a later point

in time

TREASURY STOCK or shares may be purchased

by the corporation, or reacquired through donation, FORFEITURE, or some other method

It is then regarded as thePERSONAL PROPERTY of the corporation and part of its assets The corporation can sell the stock for cash or credit, for par value or market value, or upon any terms that it could be sold by a stockholder Shares that the corporation has not issued in spite of its authority to do so are ordinarily not regarded as treasury shares but are merely

98 TREASURY STOCK

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unissued shares The uses of treasury stock are

several: It can help prevent takeover attempts or

provide compensation for employees in lieu of

cash, to name two such scenarios

TREATIES IN FORCE

A publication compiled by the Treaty Affairs Staff,

Office of the Legal Adviser, STATE DEPARTMENT,

which lists treaties and other international

agree-ments of the United States that are on record with

the Department of State

Treaties in Force lists those treaties and other

agreements that had not expired on the date of

publication, had not been repudiated by the

parties, had not been replaced by other

agree-ments, or had not otherwise been terminated It

employs the term treaties in its broad, generic

sense as alluding to all international agreements

of the United States In its narrower sense, in

the United States, the word treaties denotes

international agreements executed by the

presi-dent with the advice and consent of two-thirds

of the Senate

This publication also includes agreements in

force between the United States and foreign

nations that the president has made pursuant

to, or in accordance with, existing legislation or

a treaty, subject to congressional approval or

effectuation, or under and in accordance with

the president’s power under the Constitution

TREATISE

A scholarly legal publication containing all the

law relating to a particular area, such asCRIMINAL

LAWorLAND-USE CONTROL

Lawyers commonly use treatises in order to

review the law and update their knowledge of

pertinent case decisions and statutes

TREATY

A treaty is a compact made between two or more

independent nations with a view to the public

WELFARE

A treaty is an agreement in written form

between nation-states (or international

agen-cies, such as theUNITED NATIONS, that have been

given treaty-making capacity by the states that

created them) that is intended to establish a

relationship governed by INTERNATIONAL LAW

(A treaty is itself a form of international law

as well.) A treaty may be contained in a single

instrument or in two or more related instru-ments such as an exchange of diplomatic notes

Various terms have been used for such an agreement, including treaty, convention, proto-col, declaration, charter, COVENANT, pact, act, statute, exchange of notes, agreement, modus vivendi (“manner of living” or practical com-promise), and understanding The particular designation does not affect the agreement’s legal character

Though a treaty may take many forms, an international agreement customarily includes four or five basic elements The first is the preamble, which gives the names of the parties,

a statement of the general aims of the treaty, and a statement naming the plenipotentiaries (the persons invested with the power to negotiate) who negotiated the agreement and verifying that they have the power to make the treaty The substance of the treaty is contained

in articles that describe what the parties have agreed upon; these articles are followed by an article providing for RATIFICATION and the time and place for the exchange of ratifications At the end of the document is a clause that states

“in witness whereof the respective plenipotenti-aries have affixed their names and seals” and a place for signatures and dates Sometimes additional articles are appended to the treaty and signed by the plenipotentiaries along with a declaration stating that the articles have the same force as those contained in the body of the agreement

Article II, Section 2, Clause 2, of the U.S

Constitution gives the president the power to negotiate and ratify treaties, but he must obtain the advice and consent of theSENATE(in practice solicited only after negotiation); two-thirds of the senators present must concur Article I, Section 10, of the Constitution forbids the states

to enter into a “treaty, alliance, or confedera-tion,” although they may enter into an “agree-ment or compact” with other states, domestic

or foreign, but only with the consent of Congress

The U.S SUPREME COURT, in Missouri v

Holland (252 U.S 416, 40 S Ct 382, 64 L Ed

641 [1920]), established that U.S treaties are superior to state law Acts of Congress, however, are equivalent to a treaty Thus, if a treaty and a law of Congress are inconsistent, the one later

in time prevails The Court has never found a treaty to be unconstitutional, and few treaties have been challenged In general, the Court

TREATY 99

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views a dispute over a treaty as a POLITICAL QUESTIONoutside its jurisdiction

Traditionally, international law required treaties to be ratified in the same form by all parties Consequently, reservations or amend-ments proposed by one party had to be accepted

by all Because of the large number of participating states, this unanimity rule has proved difficult to enforce in modern multilat-eral treaties sponsored by international agencies for the purpose of creating legal regimes or codifying rules of international law Where agreement exists on the essential elements of

a treaty, international law increasingly allows reservations as to minor points not unani-mously accepted Treaties for which ratification

is specified come into effect upon the exchange

of ratifications between the parties or upon deposit of the ratifications with a designated party or international agency, such as the Secretariat of the United Nations

A treaty may be terminated in accordance with specifications in the treaty or by consent of the parties War between the parties does not invariably terminate treaties, as some treaties are made to regulate the conduct of hostilities and treatment of prisoners Other treaties may

be suspended for the duration of the hostilities and then resumed An unjustified, unilateral ABROGATIONof a treaty may give rise to possible international claims for any injury suffered by the other parties

Treaties are usually interpreted according to the ordinary sense of their words in context and the apparent purposes to be achieved If the meaning of the language is unclear or there is doubt that it expresses the intention of the parties, the work product of the negotiation process may be consulted as well as other EXTRINSIC EVIDENCE

FURTHER READINGS Brownlie, Ian 2009 Basic Documents in International Law 6th ed New York: Oxford University Press.

Krutz, Glen S., and Jeffrey S Peake 2009 Treaty Politics and the Rise of Executive Agreements: International Commit-ments in a System of Shared Powers Ann Arbor: University of Michigan Press.

CROSS REFERENCES International Law; United Nations

TREATY OF PARIS The Treaty of Paris of 1783 ended the Amer-ican WAR OF INDEPENDENCE and granted the thirteen colonies political independence A preliminary treaty between Great Britain and the United States was signed in 1782, but the final agreement was not signed until Septem-ber 3, 1783

The surrender of the British army at York-town, Virginia, on October 19, 1781, ended the major military hostilities of the American War

of Independence, but sporadic fighting, mostly

in the south and west, continued for more than

a year The defeat led to the resignation of the British prime minister, Lord North The coali-tion cabinet that was formed after North’s resignation decided to begin peace negotiations with the colonial revolutionaries

The negotiations began in Paris, France, in April 1782 The U.S delegation included BENJAMIN FRANKLIN, JOHN ADAMS, JOHN JAY, and Henry Laurens, whereas the British were represented by Richard Oswald and Henry Strachey The negotiators concluded the pre-liminary treaty on November 30, 1782, but the agreement did not take effect until Great Britain concluded treaties with France and Spain concerning other British colonies

The signature page of

the Treaty of Paris,

signed by Great

Britain’s

representative, David

Hartley, and by U.S.

representatives John

Adams, Benjamin

Franklin, and John

Jay.

CORBIS.

100 TREATY OF PARIS

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The United States ratified the preliminary

treaty on April 15, 1783 In the final agreement

that was signed in September 1783, the British

recognized the independence of the United

States The treaty established generous

bound-aries for the United States: U.S territory would

extend from the Atlantic Ocean to the

Mis-sissippi River in the west, and from the Great

Lakes and Canada in the north to the thirty-first

parallel in the south The U.S fishing fleet was

guaranteed access to the fisheries off the coast of

Newfoundland

Under the treaty, navigation of the

Mis-sissippi River was to be open to both the United

States and Great Britain Creditors of both

countries were not to be impeded from

collecting their debts, and Congress was to

recommend to the states that loyalists to the

British cause during the war be treated fairly

and have their rights and confiscated property

restored

Although the treaty secured U.S

indepen-dence, it left several border regions undefined or

in dispute, and certain provisions also remained

unenforced These issues would be resolved

over the years, though not always without

controversy, by a series of U.S agreements with

Spain and Britain, including the Jay Treaty, the

Treaty of San Lorenzo, the Convention of 1818,

and the Webster-Ashburton Treaty of 1842

FURTHER READINGS

Brecher, Frank W 2003 Securing American Independence:

John Jay and the French Alliance Westport, Conn.:

Praeger.

CROSS REFERENCES

“Treaty of Paris” (Appendix, Primary Document); War of

Independence.

TREATY OF VERSAILLES

The Treaty of Versailles was the agreement

negotiated during the Paris Peace Conference of

1919 that ended WORLD WAR I and imposed

disarmament, reparations, and territorial changes

on the defeated Germany The treaty also

established the LEAGUE OF NATIONS, an

interna-tional organization dedicated to resolving world

conflicts peacefully The treaty has been criticized

for its harsh treatment of Germany, which many

historians believe contributed to the rise of

Nazism andADOLF HITLERin the 1930s

President WOODROW WILSON played an im-portant role in ending the hostilities and convening a peace conference When the United States entered the war in January 1917, Wilson intended to use U.S influence to end the long cycle of peace and war in Europe and create an international peace organization On January 8,

1918, he delivered an address to Congress that named Fourteen Points to be used as the guide for a peace settlement Nine of the points covered new territorial consignments, while the other five were of a general nature In October

1918 Germany asked Wilson to arrange both a general ARMISTICEbased on the Fourteen Points and a conference to begin peace negotiations

On November 11 the armistice was concluded

The Paris Peace Conference began in January 1919 The conference was dominated

by David Lloyd George of Great Britain, Georges Clemenceau of France, and Wilson of the United States, with Vittorio Orlando of Italy playing a lesser role These leaders agreed that Germany and its allies would have no role in negotiating the treaty

The first of Wilson’s Fourteen Points stated that it was essential for a postwar settlement to have “open covenants of peace, openly arrived

at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.” Wilson’s lofty vision, however, was undercut in Paris by secret treaties that Great Britain, France, and Italy had made during the war with Greece, Romania, and each other

In addition, the European Allies demanded compensation from Germany for the damage their civilian populations had suffered and for German aggression in general Wilson’s loftier

Most of the terms of the Treaty of Versailles were set at the Paris Peace Conference, which was dominated by (l-r) Lloyd George

of Great Britain, Vittorio Orlando of Italy, Georges Clemenceau of France, and Woodrow Wilson of the United States LIBRARY OF CONGRESS TREATY OF VERSAILLES 101

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ideas gave way to the stern demands of the Allies

The Treaty of Versailles was signed on June

28, 1919, in the Hall of Mirrors of the Palace of Versailles The terms dictated to Germany included a war guilt clause, in which Germany accepted responsibility as the aggressor in the war Based on this clause, the Allies imposed reparations for war damage Though the treaty did not specify an exact amount, a commission established in 1921 assessed $33 billion of reparations

The boundaries of Germany and other parts

of Europe were changed Germany was required

to return the territories of Alsace and Lorraine

to France and to place the Saarland under the supervision of the League of Nations until 1935

Several territories were given to Belgium and Holland, and the nation of Poland was created from portions of German Silesia and Prussia

The Austro-Hungarian Empire was dismantled, and the countries of Austria, Hungary, Czecho-slovakia, Bulgaria, and Romania were recog-nized All German overseas colonies in China, the Pacific, and Africa were taken over by Great Britain, France, Japan, and other Allied nations

France, which had been invaded by Germany

in 1871 and 1914, was adamant about disarming Germany The treaty reduced the German army

to 100,000 troops, eliminated the general staff, and prohibited Germany from manufacturing armored cars, tanks, submarines, airplanes, and poison gas In addition, all German territory west of the Rhine River (Rhineland), was established as a demilitarized zone

The Treaty of Versailles also created the League of Nations, which was to enforce the treaty and encourage the peaceful resolution of international conflicts Many Americans were opposed to joining the League of Nations, however, and despite Wilson’s efforts, the U.S

Senate failed to ratify the treaty Hence, instead

of signing the Treaty of Versailles, the United States signed a separate peace treaty with Germany, the Treaty of Berlin, on July 2,

1921 This treaty conformed to the Versailles agreement except for the omission of the League

of Nations provisions

The Treaty of Versailles has been criticized

as a vindictive agreement that violated the spirit

of Wilson’s Fourteen Points The harsh terms hurt the German economy in the 1920s and contributed to the popularity of leaders such

as Hitler who argued for the restoration of German honor through remilitarization

FURTHER READINGS Andelman, David A 2007 A Shattered Peace: Versailles 1919 and the Price We Pay Today Hoboken, N.J.: Wiley Boemeke, Manfred F., Gerald D Feldman, and Elisabeth Glaser, eds 1998 The Treaty of Versailles: 75 Years After New York: Cambridge Univ Press.

Marks, Sally 2003 The Illusion of Peace: International Relations in Europe, 1918–1933 New York: Palgrave Macmillan.

TREBLE DAMAGES

A recovery of three times the amount of actual financial losses suffered which is provided by statute for certain kinds of cases

The statute authorizing treble damages directs the judge to multiply by three the amount of monetary damages awarded by the jury in those cases and to give judgment to the plaintiff in that tripled amount TheCLAYTON ACT (15 U.S.C.A § 12 et seq.), for example, directs that treble damages be awarded for violations ofANTITRUST LAWS

TRENT AFFAIR The Trent affair, which occurred during the early years of the U.S.CIVIL WAR, challenged the traditional concepts of freedom of the seas and the rights of neutrals and almost precipitated

a war between the United States and Great Britain

In 1861, the newly established Confederacy appointed two emissaries to represent its gov-ernment overseas James Murray Mason was assigned to London, England, and John Slidell was sent to Paris, France The two envoys successfully made their way to Havana, Cuba, where they boarded an English ship, the Trent, which set sail on November 7 The next day, the San Jacinto, a Union warship under the command of Captain Charles Wilkes, an officer

in the U.S Navy, intercepted the Trent Wilkes acted upon his own authority and detained the English ship He ordered a search of the Trent, and when the two Confederates were discov-ered, he ordered them to be transferred to the San Jacinto and transported to Fort Warren

in Boston The Trent was allowed to continue without further interference

Although Wilkes was praised by North-erners and several members of the cabinet of PresidentABRAHAM LINCOLNfor his action against

102 TREBLE DAMAGES

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the Confederacy, his disregard for their rights as

a neutral power angered the English Wilkes had

made the error of conducting the operation by

himself rather than ordering the ship to port

to undergo legal proceedings to determine if

England had violated the rules of neutrality

Since Wilkes had not followed established legal

procedure, he had no right to remove any cargo,

human or otherwise, from another vessel

English tempers flared and threats of war

were issued The English demands included a

public apology and the release of the two

Confederates The English representative to

the United States awaited orders to return to

England if these demands were not met

In England, however, news of the

impend-ing death of Prince Albert diverted attention

from the Trent affair When the English

demands were received in the United States,

Charles Francis Adams, U.S diplomat to

England, was ordered to explain to the English

that Wilkes had acted of his own accord,

without instructions from the government In the meantime, Secretary of State William H

Seward studied the matter carefully; he knew that Wilkes’s conduct had not been correct

Seward was also aware that he had two choices:

war with England or release of the incarcerated Confederates In a communiqué to England, Seward admitted the mistake of Wilkes, reported the release of Mason and Slidell, and upheld the sanctity of freedom of the seas War with England was averted, and navigation rights were maintained

FURTHER READINGS Adams, Charles Francis, Jr 1912 “The Trent Affair.” The American Historical Review 17 (April).

Ferris, Norman B 1977 The Trent Affair: A Diplomatic Crisis Knoxville: Univ of Tennessee Press.

Warren, Gordon H 1981 Fountain of Discontent: The Trent Affair and Freedom of the Seas Boston: Northeastern Univ Press.

CROSS REFERENCES Admiralty and Maritime Law.

J.M Mason, a confederate emissary bound for London, is removed from the Trent, an English vessel Mason and John Slidell, another confederate emissary, were removed to the U.S warship San Jacinto in November

1861 and taken to Fort Warren in Boston.

BETTMANN/CORBIS TRENT AFFAIR 103

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An unlawful intrusion that interferes with one’s person or property

TORT LAW originated in England with the action of trespass Initially trespass was any wrongful conduct directly causing injury or loss;

in modern law trespass is an unauthorized entry upon land A trespass gives the aggrieved party the right to bring a civil lawsuit and collect damages as compensation for the interference and for any harm suffered Trespass is an intentional tort and, in some circumstances, can

be punished as a crime

Common-Law Form of Action

Trespass is one of the ancient FORMS OF ACTION that arose under theCOMMON LAWof England as early as the thirteenth century It was consid-ered a breach of the king’s peace for which the wrongdoer might be summoned before the king’s court to respond in a civil proceeding for the harm caused Because the king’s courts were primarily interested in land ownership disputes, the more personal action of trespass developed slowly at first

Around the middle of the fourteenth century, the clerks of the king’s courts began routinely giving out writs that permitted a plaintiff to begin a trespass action Before that time criminal remedies for trespass were more common The courts were primarily concerned with punishing the trespasser rather than compensating the landowner From the begin-ning a defendant convicted of trespass was fined; a defendant who could not pay the fine was imprisoned The fine in this criminal proceeding developed into an award of damages

to the plaintiff This change marked the beginning of tort action under the common law

As trespass developed into a means of com-pelling the defendant to compensate the plaintiff for injury to his property interests, it took two forms: an action for trespass on real property and

an action for injury toPERSONAL PROPERTY

In an action for trespass on land, the plaintiff could recover damages for the defen-dant’s forcible interference with the plaintiff’s possession of his land Even the slightest entry onto the land without the plaintiff’s permission gave the plaintiff the right to damages in a nominal sum

An action for trespass to chattels was available to seek damages from anyone who

had intentionally or forcibly injured personal property The injury could include carrying off the plaintiff’s property or harming it, destroy-ing it, or keepdestroy-ing the plaintiff from holddestroy-ing or using it as she had a right to do

Later, an additional CAUSE OF ACTION was recognized for injuries that were not forcible or direct This action was called trespass on the case

or action on the case because its purpose was

to protect the plaintiff’s legal rights, rather than her person or land, from intentional force Over the years the courts recognized other forms of actions that permitted recovery for injuries that did not exactly fit the forms of trespass or trespass on the case Eventually, writs were also issued for these various types of actions For example, a continuing trespass was a permanent invasion of someone’s rights, as when a building overhung a neighbor’s land A trespass for mesne profits was a form of action against a tenant who wrongfully took profits, such as a crop, from the property while he occupied it A trespass to try title was a form of action to recover possession of real property from someone who was not entitled to it This action“tried title” so that the court could order possession for the person who turned out to be the rightful owner

These common-law forms of action had serious shortcomings A plaintiff who could not fit her complaint exactly into one of the forms could not proceed in court, even if she obviously had been wronged Modern law has remedied this situation by enacting rules ofCIVIL PROCEDUREthat replace the common-law forms with more flexible ways of wording a civil complaint The various trespass actions are still important, however, because modern property laws are largely based on them The rights protected remain in force, and frequently even the old names are still used

Trespass to Land

In modern law the word trespass is used most commonly to describe the intentional and wrongful invasion of another’s real property

An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the real property, such as the owner of

an apartment building, a tenant, or a member of the tenant’s family The action can be main-tained against anyone who interferes with the right of ownership or possession, whether the

104 TRESPASS

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invasion is by a person or by something that a

person has set in motion For example, a hunter

who enters fields where hunting is forbidden is

a trespasser, and so is a company that throws

rocks onto neighboring land when it is blasting

Every unlawful entry onto another’s

prop-erty is trespass, even if no harm is done to the

property A person who has a right to come

onto the land may become a trespasser by

committing wrongful acts after entry For

example, a mail carrier has a privilege to walk

up the sidewalk at a private home but is not

entitled to go through the front door A person

who enters property with permission but stays

after he has been told to leave also commits a

trespass Moreover, an intruder cannot defend

himself in a trespass action by showing that the

plaintiff did not have a completely valid legal

right to the property The reason for all of these

rules is that the action of trespass exists to

prevent breaches of the peace by protecting the

quiet possession of real property

In a trespass action, the plaintiff does not

have to show that the defendant intended to

trespass but only that she intended to do

whatever caused the trespass It is no excuse

that the trespasser mistakenly believed that she

was not doing wrong or that she did not

understand the wrong A child can be a

trespasser, as can a person who thought that

she was on her own land

Injury to the property is not necessary for

the defendant to be guilty of trespass, although

the amount of damages awarded will generally

reflect the extent of the harm done to the

property For example, a person could sue

bird-watchers who intruded onto his land but would

probably receive only nominal damages A

farmer who discovers several persons cutting

down valuable hardwood trees for firewood

could recover a more substantial amount in

damages

Trespassers are responsible for nearly all the

consequences of their unlawful entry, including

those that could not have been anticipated or

are the result of nothing more wrongful than

the trespass itself For example, if a trespasser

carefully lights a fire in the stove of a lake cabin

and a fault in the stove causes the cabin to burn

down, the trespasser can be held liable for the

fire damage

Courts have had to consider how far above

and below the ground the right to possession

of land extends In United States v Causby, 328 U.S 256, 66 S Ct 1062, 90 L Ed 1206 (1946), the U.S Supreme Court held the federal government liable for harm caused to a poultry business by low-altitude military flights The Court concluded that because the airspace above land is like a public highway, ordinary airplane flights cannot commit trespass In this case, however, the planes were flying below levels approved by federal law and regulations,

so the government was held responsible Its activity was a “taking” of private property, for which the FIFTH AMENDMENTto the U.S Consti-tution requires just compensation

It may be a trespass to tunnel or mine under another person’s property, to force water or soil under the property, or to build a foundation that crosses under the boundary line Under-ground encroachments are usually an exception

to the rule that no harm needs to be shown in order to prove a trespass Generally, trespass actions are permitted only where there is some damage to the surface or some interference with the owner’s rights to use her property

Trespass by One Entitled to Possession

In nearly all states, a person who forcibly enters onto land is guilty of a crime, even if that person

is entitled to possession of the land For example, a landlord who personally tries to eject a tenant creates a potentially explosive situation To discourage such “self help,” the states provide legal procedures for the rightful owner to use to recover his land Many states do not let the illegal occupant sue the rightful owner in trespass for his forcible entry, but the occupant can sue for ASSAULT AND BATTERY or damage to her personal property

Continuing Trespass

A trespass is continuing when the offending object remains on the property of the person entitled to possession A building or fence that encroaches on a neighbor’s property creates a continuing trespass, as does a tree that has fallen across a boundary line Some courts have allowed a series of lawsuits where there is a continuing trespass, but the prevailing view is that the dispute should be settled in its entirety

in one action

The remedies can be tailored to the particular kind of harm done A defendant might have to pay damages to repair the plaintiff’s property or compensate the plaintiff

TRESPASS 105

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for the diminished value of her property Where

a structure or object is on the plaintiff’s property, the defendant may be ordered to remove it

Defenses

In some cases a defendant is not liable for trespass even though she has intruded onto another’s property Public officials, for example,

do not have any special right to trespass, but

a housing inspector with aSEARCH WARRANTcan enter someone’s building whether the owner consents or not A police officer can pursue a criminal across private property without liabil-ity for trespass The police officer’s defense to

a claim of trespass is her lawful authority to enter

A hotel employee who enters a guest’s room

to perform housekeeping services is not a trespasser because it is customary to assume that guests want such services If charged with trespass by the guest, the hotel would claim the guest consented to the employee’s entry

A landlord does not have the right to enter a tenant’s apartment whenever the landlord wants However, the landlord usually has the right to enter to make repairs The landlord must arrange a reasonable time for the repairs, but the tenant’s consent to this arrangement is either contained in the lease or is implied from the landlord’s assumption of responsibility for making repairs inside the apartment

A person is not guilty of trespass if he goes onto another’s land to protect life or property during an emergency For example, a passerby who sees someone pointing a gun at another person may cross onto the property and subdue the person with the gun Someone at the scene

of a traffic accident may go onto private property

to pull a victim from one of the vehicles

Permission to enter someone else’s prop-erty can be given either by consent or by license Consent simply means giving permis-sion or allowing another onto the land For example, a person who lets neighborhood children play in her yard has given consent

Consent may be implied from all the circum-stances A homeowner who calls a house painter and asks for an estimate cannot later complain that the painter trespassed by coming into her yard

Sometimes consent to enter another’s land

is called a license, or legal permission This

license is not necessarily a certificate and may be

in the form of a written agreement For example,

an electric company might have a license to enter private property to maintain electrical lines or to read the electric meter The employ-ees cannot act unreasonably when they make repairs, and they and the company are liable for any damage they cause to the property

Duty to Trespassers

A homeowner is limited in what he can do to protect his family and property from trespas-sers The homeowner cannot shoot children who keep cutting across the lawn or set traps or deadly spring-operated guns to kill anyone who trespasses on the property.DEADLY FORCE in any manner is generally not justifiable except in SELF-DEFENSE while preventing a violent felony Mere trespass is not a felony

The owner or person in possession of real property can be held liable if guests are injured

on the property because of the owner’s NEGLI-GENCE A property owner generally does not have the same duty to make the premises safe for a trespasser, however A trespasser assumes the risk of being injured by an unguarded excavation, a fence accidentally electrified by a falling wire, or a broken stair The occupant of real property has a duty only to refrain from intentionally injuring a trespasser on the premises These general rules have several exceptions, however A property owner who knows that people frequently trespass at a particular place

on his land must act affirmatively to keep them out or exercise care to prevent their injury If the trespasser is a child, most states require an occupant of land to be more careful because a child cannot always be expected to understand and appreciate dangers Therefore, if the pro-perty owner has a swimming pool, the law would classify this as an attractive nuisance that could be expected to cause harm to a child The property owner must take reasonable precau-tions to prevent a trespassing child from harm

In this case the erection of a fence around the swimming pool would likely shield the property owner from liability if a child trespassed and drowned in the pool

Criminal Trespass

At common law a trespass was not criminal unless it was accomplished by violence or breached the peace Some modern statutes make any unlawful entry onto another’s property

106 TRESPASS

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a crime When the trespass involves violence

or injury to a person or property, it is always

considered criminal, and penalties may be

increased for more serious or malicious acts

Criminal intent may have to be proved to

convict under some statutes, but in some states

trespass is a criminal offense regardless of the

defendant’s intent

Some statutes consider a trespass criminal

only if the defendant has an unlawful purpose

in entering or remaining in the place where he

has no right to be The unlawful purpose may

be an attempt to disrupt a government office,

theft, or ARSON Statutes in some states specify

that a trespass is not criminal until after a

warning, either spoken or by posted signs, has

been given to the trespasser Criminal trespass

is punishable by fine or imprisonment or both

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