Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
CHAPTER 2. INTENTIONALLY INFLICTED PHYSICAL HARMS
The first chapter offered an introduction to tort law through the law of battery, the
paradigmatic intentional tort with respect to people’s bodies. Now we pursue the law of
intentional torts against property, including real property (which is to say, land and any fixtures
thereupon) and personal property (which is to say, everything else). The chapter then takes up
four causes of action that respond to less tangible but no less significant personal injuries: to one’s
dignity (offensive battery), to one’s sense of physical safety and bodily integrity (assault), to one’s
freedom of movement (false imprisonment), and to one’s psychological and emotional well-being
(intentional infliction of emotional distress). Finally, we end the chapter with a discussion of
defenses to liability for intentional torts.
A. Trespass
1. Trespass to Land
Dougherty v. Stepp, 18 N.C. 371 (1835)
The only proof introduced by the plaintiff to establish an act of trespass, was, that the
defendant had entered on the unenclosed land of the plaintiff, with a surveyor and chain carriers,
and actually surveyed a part of it, claiming it as his own, but without marking trees or cutting
bushes. This, his Honor held not to be a trespass, and the jury under his instructions, found a
verdict for the defendant, and the plaintiff appealed. . . .
RUFFIN, C.J.
In the opinion of the Court, there is error in the instructions given to the jury. The amount
of damages may depend on the acts done on the land, and the extent of injury to it therefrom. But
it is an elementary principle, that every unauthorised, and therefore unlawful entry, into the close
of another, is a trespass. From every such entry against the will of the possessor, the law infers
some damage; if nothing more, the treading down the grass or the herbage, or as here, the
shrubbery. Had the locus in quo been under cultivation or enclosed, there would have been no
doubt of the plaintiff’s right to recover. Now our Courts have for a long time past held that if
there be no adverse possession, the title makes the land the owner’s close. Making the survey and
marking trees, or making it without marking, differ only in the degree, and not in the nature of the
injury. It is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will
make a wilful entry into the land of another, upon an unfounded claim of right, innocent, which
one, who sat up no title to the land, could not justify or excuse. On the contrary, the pretended
ownership aggravates the wrong. Let the judgment be reversed, and a new trial granted.
Judgment Reversed.
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