Trespass to Land

Adapted from James Grimmelmann, 'Property Torts and Crimes' in Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, eds., 'Open Source Property' https://opensourceproperty.org

The name of the most familiar tort protecting real property, trespass, was originally the name of an entire family of actions that first emerged in the 12th and 13th centuries. A plaintiff would commence his case by going to the royal Chancery and purchasing a writ commanding the defendant to come before the courts and explain why he had done such-and-such a thing against the plaintiff’s rights. The Latin phrases used by the Chancery clerks who filled out the writs – and which the royal courts insisted on when hearing a case – came to define individual forms of action.

One of the earliest such formulaic phrases, and one with one of the longest careers in the common law, was trespass quare clausum fregit (literally, “why he broke the close,” and often abbreviated to “trespass q.c.f.”). The gist of the action was that the defendant, wrongfully, with force and arms (in Latin, vi et armis) and against the King’s peace, had broken into the plaintiff’s enclosed lands and caused injury. As in a trespass action for intentional battery, a plaintiff bringing an action for trespass q.c.f. could obtain money damages to the extent of his injuries. Trespass q.c.f. was the natural cause of action for damaging the plaintiff’s crops or destroying his buildings.

Trespass is also a crime (or a quasi-criminal action), but it is a surprisingly mild one, as you can see in Harrison v Carswell and in Nova Scotia’s Protection of Property Act.