The common law crime of criminal trespass generally consists of two basic elements. The first is trespass, which can be broadly defined as interference with another's actual and peaceable possession of property. Examples of such interference are entry onto or refusal to leave premises against the expressed wishes of the possessor. The second is breach of the peace, which generally involves force, violence, or some threat thereof. Where force is involved, issues concerning the title of ownership of property or the right to possession are irrelevant on the policy ground that such issues should be settled peacefully through the legal process rather than by potentially violent private action. Because of this concern with the use of force, the crime is sometimes referred to as forcible trespass.
Many statutes have abandoned the requirement of a breach of the peace, however, and prohibit any unauthorized intrusion. This can be accomplished by a general statutory prohibition of such intrusions (Model Penal Code, § 206.53) or by statutes aimed at particular conduct. Examples of the latter are specific prohibitions against entering upon land that has notices posted indicating that entry is forbidden; and against entering or refusing to leave despite a request to stay out or to leave by the person in possession of the premises. Where intrusion, rather than breach of the peace, is the focus of the prohibition, issues concerning ownership or some other right to be on the premises could become relevant. Thus, for example, a person cannot be convicted of entering land against the wishes of the person in possession if the former has a right to be on the premises.
Criminal trespass often overlaps with, or is similar to, other crimes. Three types of such related crimes are relevant here.
The use or threat of force. Since criminal trespass may involve the use or threat of physical force, it overlaps with crimes prohibiting such use or threat. In particular, a criminal trespass may also involve the following distinct crimes:
- Breach of the peace. This crime includes not only unlawful force but also such offenses as language or other conduct that is abusive, insulting, loud, or disturbing.
- Battery. This crime prohibits any unlawful touching of another's person.
- Assault. This crime prohibits attempted battery or conduct that threatens another with battery.
Criminal forcible entry and detainer. Criminal trespass overlaps to a considerable degree with the crime of forcible entry and detainer. Forcible entry is the entry onto another's land accompanied by force, threat, violence, or other breach of the peace. Forcible detainer covers cases of forceful refusal to leave, rather than cases of entry. The crime of forcible entry and detainer, like criminal trespass, is designed to prohibit the use of potentially violent private action in disputes over the rights to possession of property. Thus, both crimes focus on possession rather than on the ownership of the property involved.
The exact relationship between trespass and forcible entry and detainer is often unclear. Some authorities indicate that trespass prohibits interference with the possession of chattels (tangible personal property), whereas forcible entry concerns the possession of real property. However, such a distinction is not followed universally, and there are virtually no modern decisions involving criminal trespass in relation to chattels.
Entry with specific intent and under specific circumstances. Criminal trespass also overlaps with a class of crimes prohibiting certain types of entry with a specific intent. For example, the common law crime of burglary involves a type of entry with a specific intent—breaking and entering a dwelling at night with intent to commit a felony. Many codes have expanded this type of crime and include prohibitions on entry upon land or into buildings with a specific intent, for example, entry upon land with intent to steal livestock.
Trespass originated in England in the thirteenth century as a general concept indicating that the defendant had done a wrong and should, therefore, pay damages and be fined. Although there was no clear distinction between crime and tort (wrongs for which a civil remedy exists) at this time, the main emphasis was on providing civil remedies such as payment of damages or return of possession. The allegation of breach of the peace or some use of force apparently served more as a device to justify judicial action than as an indication of the criminal nature of the defendant's conduct. In the late fourteenth century, Parliament adopted criminal statutes prohibiting forcible entry on real property. This legislative scheme was further developed in the next two and a half centuries, primarily to provide for return of possession and to prohibit forcible detainers (refusals to leave).
In the first half of the eighteenth century a series of English cases explicitly recognized for the first time the existence of the common law crime of criminal trespass. The lateness of this development is apparently explainable by a variety of factors: the existence of civil remedies for the tort of trespass; the availability of the legislation concerning forcible entry and detainer, which provided both a civil remedy and criminal sanctions; and the failure to remedy certain conditions—such as the general weakness of the executive branch of government and thus of the means for prosecuting he crime—until the sixteenth century.
The recognition of the crime of criminal trespass was complete by the time of the American Revolution, and the individual states adopted the common law crime of criminal trespass. They also adopted the prohibition of forcible entry and detainer, either as a part of a broadly defined common law or in statutory provisions.
F. Patrick Hubbard
Dan M. Kahan
See also Burglary.
American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Commentaries. Philadelphia: ALI, 1985.
Deiser, George F. "The Development of Principle in Trespass." Yale Law Journal 27 (1917): 220–241.
Holdsworth, William Searle. A History of English Law, vol. 3. London: Methuen, 1965.
Sharpe, David J. "Forcible Trespass to Real Property." North Carolina Law Review 39 (1961): 121–153.
Woodbine, George E. "The Origins of the Action of Trespass." Yale Law Journal 33 (1924): 799–816; 34 (1925): 343–370.