top of page
  • Kris

“The 2Point Way” - Encroachment & Trespass

Encroachment and/or trespass on school lands, public highways, and state land are frequent sources of litigation, in addition to numerous disputes over private titles. However, the concepts of encroachment and trespass are more complex than they appear at first glance. In addition to common law connotations, the terms may have specific definitions in some jurisdictions, under state statute or local code.


At the more general level, encroachments have been defined as:

· “An intrusion or invasion on adjoining property” without the benefit of an easement. 2 C.J.S. Adjoining Landowners § 41 (1972).

· An infringement on another’s rights or intrusion on another’s property. Black’s Law Dictionary.

Encroachment is a broad term that may not always apply to property rights or land disputes. Court rulings include discussion of “…legislative encroachments on a person’s right to a jury trial…” (Commonwealth v. Miller: 452 Pa. 35 (1973)) and judiciary “…encroachment upon the province of the legislature…” (Wagner v. Lathers: 26 Wis. 436 (1870)).

Encroachment vs. Signed Survey

As is often the case with other title considerations, a signed survey—considered alone—may have little or no effect on a property title, contrary to popular assumption. This is also true of erroneous surveys that might represent an overlap where one does not actually exist. This does not constitute an encroachment, despite the visual representation of an overlap with adjoining lands.

The relationship between flawed surveys, physical trespass and encroachment is illustrated in a recent dispute on the Island of Rota in the United States Commonwealth of the Northern Mariana Islands (CNMI). Estate of Taisacan v. Hattori, 4 N. Mar. I. 26 (1993) cites numerous mainland examples to support its conclusion: “None of the authorities cited by the Estate support the proposition that an encroachment occurs solely on the basis of an erroneous survey. Each of the following cases cited by the Estate involve a physical intrusion on the land of another: Maull v. Lindsley, 84 So. 92 (Fla. 1920) (action to enjoin defendants from obstructing dedicated public highway); Overstreet v. Lamb, 128 So. 2d 897 (Fla. Dist. Ct. App. 1961) (action to remove structure encroaching on plaintiffs property); Boone v. Robinson, 152 S.W. 753 (Ky. 1913) (action to establish boundary lines on basis of mutual mistake where partition fence built on plaintiffs land); Murray Hotel Co. v. Golding, 216 P.2d 364 (N.M. 1950) (adobe wall on land in dispute).

The record below shows no physical or tangible object extending from the Hattori property onto the Estate property. The Estate’s claim of encroachment rests solely on its allegation that the government’s 1983 survey of defendants’ property was too expansive. Without more, the Estate’s claim of encroachment fails.”

Drawing lines on a map, even under the supervision of a Land Surveyor, does not constitute a physical intrusion on the lands of another.


As seen in the previous example, an encroachment is often equated with a ‘trespass,’ generally defined as an unlawful entry onto the lands of another. Trespass appears to be a more limited term because its definitions almost invariably include the term ‘land’ while encroachment could include situations not related to land disputes.

In Riddle Quarries, Inc. v. Thompson, 177 Kan. 307 (1955), the Kansas court provides several similar definitions of trespass with similar associations with real property: “A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. (Restatement, Torts, Sec. 329.)

In Restatement, Torts, Sec. 158, the rule is much to the same effect. There it is said: One who intentionally and without a consensual or other privilege (a) enters land in possession of another or any part thereof or causes a thing or third person so to do or (b) remains thereon, or (c) permits to remain thereon a thing which the actor or his predecessor in legal interest brought thereon in the manner stated, in Sections 160 and 161, is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.

In Sec. 160 of the same authority it is said: A trespass, actionable under the rule stated in Sec. 158, may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon (a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or (b) pursuant to a privilege conferred on the actor irrespective of the possessor’s consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.

In 38 Am. Jur., Negligence, Sec. 104, it is said: Sometimes one who enters premises as a licensee becomes a trespasser. A licensee who exceeds the permission given him becomes a trespasser and is only entitled to the observance of that duty on the part of the owner or occupant which he owes to any other trespasser.”

Other Violations Confused with Trespass

A County Land Surveyor was cited for operating a motor vehicle within a state park as described in the Wisconsin ruling DNR v. Bowden, 254 Wis. 2d 625 (2002). The surveyor was recovering section corners along the boundary of Blue Mounds State Park and drove his truck on a park trail that was not approved for motor vehicles.

The surveyor cited a state statute that provides surveyors limited immunity to trespass in certain situations. Wisconsin Stat. § 59.73(2) includes the following language: “Whenever a surveyor is required to subdivide a section or smaller subdivision of land established by the United States survey, the surveyor shall proceed according to the statutes of the United States and the rules and regulations made by the secretary of the interior in conformity to the federal statutes. While so engaged a surveyor and the surveyor's assistants shall not be liable as a trespasser…” The surveyor had been told that he could walk the trail to the work site, but could not drive his truck. In doing so, the violation was not trespass, but “operating a motor vehicle in an unauthorized area.”

Encroachment & Limitations

An old fence mistakenly built at variance to the boundary was the subject of the Idaho decision Flying Elk Investment, LLC v. Cornwall: 232 P.3d 330 (2010). While the fence would have been considered a trespass at the time of its construction, the long lapse of time and operation of Idaho law rendered the fence legitimate evidence of the limits of ownership.

In an odd twist, the court describes the fence as an encroachment on the deed, yet no remedy remains for the recent demand for its removal: “The fence has existed for so long and under such circumstances it has become a boundary by agreement and now marks the legal boundary of the parties’ estates… “Once there is an agreed upon boundary, the parties to the agreement are no longer entitled to the amount of property provided for in their deeds and must absorb the effect of any increase or decrease in the amount of their property as a result of the new boundary.” …Thus, the statute does not require Cornwall to move the fence because there is no evidence the fence was erected in its current location by accident. Although the fence encroaches on Flying Elk’s deeded property, it now marks the legal boundary between the parties.”

Encroachment over Setback Lines

In addition to claims relating to upland boundary lines, encroachments can occur across buffer zones, setback lines or easement limits.

An encroachment may occur where landowners build structures that extend beyond a minimum setback line. This will have varying significance—and differing solutions—depending on whether the setback was created by ordinance, covenant or deed. These situations also require careful use of appropriate terms because the structures do not intrude onto the lands of another, but rather onto land that has been in some way set aside from the buildable area. In these cases, ‘encroachment’ is probably a more appropriate term than ‘trespass.’

Land Division with Existing Structures

The Colorado decision Graham v. Jules Investment, Inc.: 356 P.3d 986 (2014) describes an unusual situation where buildings were constructed on a single parcel that later was erroneously surveyed and divided. The result left some structures on the “wrong” side of the resulting boundary line. The structures did not constitute a trespass, but use by others was: “The trial court concluded in the second summary judgment order that the “structures alone” were not a trespass. But it decided that the use and presence of the structures “deprive[d] ... plaintiffs of the use of” 1.7 acres of their 36.5-acre parcel and "facilitated a regular, if not continuing trespass” of the refuge's staff on that part of their property.”

Ancient Restrictions vs. Encroachment

Hanna v. American National Bank & Trust Co., 266 Ill. App. 3d 544 (1994) describes a dispute over the validity of a 50-foot restriction intended to protect rights to light and air for all property owners along a street. The original setback was shown on the subdivision plat recorded circa 1860, but a subsequent agreement between landowners along the street purported to ease the restriction to 44 ft. based consistent encroachments by numerous landowners.

The court ultimately ruled that even an apparent abandonment by the city and the 1926 written agreement were not controlling and that the restriction was still in force: The trial court further found that the evidence showed that the encroachments on the setback line existing in the present case do not result in abandonment of the setback line because such encroachments are not material and substantial.

Surveyors, Attorneys and other Land Use Professionals should use care in applying correct legal terms and should not further complicate existing disputes with inappropriate assertions of encroachment or trespass.

399 views0 comments


bottom of page