Property ownership gives a person the authority to determine how that property is used and by whom. An unauthorized person entering land belonging to another is trespassing, even if the trespassing seems to cause no direct harm. While trespassing seems straightforward, this cause of action is not that simple.
Ownership
Before making a claim of trespassing, the plaintiff must first establish lawful ownership of the property. If the plaintiff has legal title, or a lawful right to possession of that property, the plaintiff may make a claim for trespassing.
Unlawful, Intentional Entry
The plaintiff must prove that the trespassing was “physical, intentional, voluntary, and unauthorized.” Pentagon Enterprises v. Southwestern Bell Telephone Co., 540 S.W.2d 477, 478 (Tex.App.- Houston [14th Dist.] 1976, writ ref’d. n.r.e.). Encroaching on someone’s property without permission is how most people understand it, but trespassing is more complex than that. If, for example, the defendant causes someone or something to enter upon the plaintiff’s land or stays on the property after being asked to leave, or fails to remove something that doesn’t belong there, those actions are also considered to be trespassing.
Trespassing is not necessarily confined to surface encroachment. If the plaintiff suffers damage because of subsurface incursion, such as drilling wells which cause damage to surrounding land, that may be trespassing. With the advent of drones, the definition of trespassing may be further expanded to reflect the ways newer technology can encroach on space above property as well. An additional challenge for the plaintiff is proving that the defendant trespassed intentionally, without actual, implied, or legal consent. Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 419 (Tex. 2015).
Damages
The plaintiff must prove that the trespass caused injury to the plaintiff. The damages could include actual damages as well as damages to business interests, loss of market value, mineral rights, etc. If the plaintiff can prove that the defendant acted fraudulently, maliciously, or negligently, then exemplary damages might also be available.
While trespassing seems clear cut, this particular cause of action holds many challenges. A real estate lawyer familiar with trespass to real property in Texas may help successfully navigate the nuances and intricacies of the claim.
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