Trespass

Scope of easement to operate a neighboring golf course determines whether intrusion of dozens of golf balls a year to victims’ property constitutes a trespass

/ Condominiums and Homeowners Associations, Easements, Servitudes, Trespass

A couple that bought a home next to a golf course sued the golf course for trespass because of all the golf balls that landed on their property. Although the golf course attempted to take remedial measures to stop golf balls from landing on the couple’s property, roughly 90 balls would land on the property each year, a dozen of which struck the house. The couple won in the trial court which awarded them $100,000 in compensatory damages for property damage and $3.4 million in emotional distress damages. The trial court also issued an injunction preventing play on the 15th hole under the golf club implemented additional remedial measures, such as reconfiguring the hole or installing netting. The Supreme Judicial Court of the Commonwealth of Massachusetts reversed and remanded the case to the trial court for more proceedings. Tenczar v. Indian Pond Country Club, Inc., 2022 WL 17813649, — N.E.3d — (Mass. 2022). …

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Kansas “ag gag” law unconstitutional infringement on free speech

/ Free Speech, Trespass

A Kansas statute (Kansas Farm Animal and Field Crop and Research Facilities Protection Act, Kan. Stat. §47-1825 to §47-1828) criminalized entry into an agricultural facility “without the effective consent of the owner” if the intent is to “damage the enterprise.” Animal Leg. Defense Fund v. Kelly, 2021 WL 3671122 (10th Cir. 2021). The Tenth Circuit struck down three provisions of the act under the first amendment because they were not content or viewpoint neutral and thus subject to strict scrutiny. The three provisions were in §47-1827 and they prohibited exercising control over an animal facility, recording on the property, or trespassing without the effective consent of the owner with the intent to damage the enterprise. The court cited Judge Posner’s opinion in Desnick v. Am. Broadcasting Co., Inc., 44 F.3d 1345 (7th Cir. 1995) approvingly for the proposition that entry to property does not infringe on the right to exclusive possession just …

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Fracking may be a trespass if it involves physical intrusion on land owned by others

/ Nuisance, Trespass

The Pennsylvania Supreme Court reaffirmed the rule of capture that allows an owner to withdraw oil and gas from beneath its property even if doing so draws oil and gas from beneath the land of others. The question was whether fracking is any different. In Briggs v. Southwestern Energy Production Co., 224 A.3d 334 (Pa. 2020), the court held that these rules do not change when an owner uses fracking techniques which pump large quantities of fluids (water and chemical additives) into an underground rock formation, even though the resulting fractures that are opened up may extend several hundred feet away — including under the land of a neighbor. But fracking may well constitute a trespass if the fluids injected beneath one’s land enter neighboring land beneath the surface. Some courts in the past have held that blasting activity on one’s own land that results in cracks in the surface of …

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Horizontal wells are a trespass even if one has the right to drill for minerals on that land

/ Trespass

In a complex and narrow holding, the West Virginia Supreme Court held that an oil and gas company had no right to drill horizontal wells from one parcel to another even if it owned mineral rights on the second parcel. EQT Prod. Co. v. Crowder, 828 S.E.2d 800 (W.Va. 2019). While a mineral owner has the right to use the surface of a tract in any way that is reasonable and necessary to withdraw minerals from beneath that tract, it has no right to use the surface to withdraw minerals from other land by means that involve physical intrusion without obtaining the consent of the surface owner of the first parcel since such actions exceed the scope of the rights that had been granted to the company.

Encroaching tree trunk and roots constitute a trespass under Montana law

/ Trespass

The Montana Supreme Court reaffirmed the traditional rule that trees on one’s own land do not unreasonably interfere with the use and enjoyment of neighboring land even if they block the neighbor’s view and so are not nuisances Martin v. Artis, 290 P.3d 687 (Mont. 2012). However, the court held that it is a trespass for the tree’s roots to encroach on the neighbor’s land, at least when they are causing harm as they are here by buckling the neighbor’s fence. The court seems to hold that the mere intrusion of the tree’s roots are sufficient to constitute a trespass. Most courts would disagree, relegating the victim to self-help, although the encroaching tree trunk might well constitute a trespass when it damages the neighbor’s fence, as seemed to be the case here.

Nevada finds no right of reasonable access to public accommodations unless a state antidiscrimination statute confers such a right

/ Antidiscrimination Law, Trespass

The Supreme Court of Nevada held that businesses of public amusement (including casinos) have the right to exclude patrons at will unless a state or federal antidiscrimination law limits their discretion. Slade v. Caesars Entertainment Corp., 373 P.3d 74 (Nev. 2016). A state statute provided that “all gaming establishments in this state must remain open to the general public and the access of the general public to gaming activities must not be restricted in any manner except as provided by the Legislature.” Nev. Rev. Stat. §463.0129(1)(e). But it also provided that “[t]his section does not … [a]brogate or abridge any common-law right of a gaming establishment to exclude any person from gaming activities or eject any person from the premises of the establishment for any reason.” Nev. Rev. Stat. §463.0129(3)(a). The court held that the common law gave places of entertainment full powers to determine who to serve, citing one Indiana Supreme Court …

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External stairway encroachment on neighboring land by one foot is allowed to remain with damages only for the trespass victim

/ Easements, Trespass

A Massachusetts court has found that a one foot encroachment on neighboring property by a new external stairway on a building is de minimus because the alley is hardly used, and the encroachment is both small and necessary to make the stairway consistent with the building code. Krieger v. Lanark LJS LLC, 2019 Mass. App. Unpub. LEXIS 345, 2019 WL 1976015 (Mass. App. Ct. 2019). A claim for injunctive release to move the encroachment was denied for those reasons and also because the encroaching owner had acted innocently, relying on an incorrect survey, and did not know that the stairway would extend onto the neighbor’s land. If the encroachment had been significant, an injunction would have been issued for it to be removed, even though it was built in a good faith belief that it was on the builder’s land. Here the encroachment was not significant because “the unlawful encroachment [was] …

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9th Circuit holds that the Constitution prohibits punishing homeless people for sleeping outdoors when there is no alternative

/ Homelessness, Trespass

The Eighth Amendment’s prohibition on cruel and unusual punishment prevents a city from imposing criminal penalties on homeless persons when they have no legal alternative alternative. Martin v. City of Boise, 2019 U.S. App. LEXIS 9453 (9th Cir. 2019). The City of Boise had two municipal ordinances – disorderly conduct and anticamping laws – that prohibited sleeping in parks. After being convicted for violating those laws, homeless persons challenged them because there were not enough shelter beds for everyone and they had no other place to sleep. The city police responded by issue a “Special Order” prohibiting enforcement of either ordinance when none of the three existing shelters had “an available overnight space.” However, the court found evidence that the police enforced the ordinances when shelter space was unavailable. Citing Robinson v. California, 370 U.S. 660 (1962), Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), Pottinger v. …

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