-Torts-Trespass-To-Land-Privilege-
Terms
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- Definition of Trespass to Land.
- Violation of a person's right to "exclusive possession" of their lawful property that causes injury.
- Texas Rule for Trespass to Land.
- The injury to property must be done by a thing.
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Case Description:
Dougherty v. Stepp - Man intruded or another man's property and surveyed the property - appellate court rule that this was trespass to land as the man had trespassed on owner's exclusive right to property.
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Case Description:
Bradley v. American Smelting Refining Co. - Plfs' stated there was trespass to land in mineral deposits accumulated that would not dissipate. However - plfs' could not prove injury to property.
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Case Description:
Herrin v. Sutherland - Bullets shot over another property. Bullet constitutes a "thing". Def' knew that the power of the shotgun and that it could reach the distance of the other man's property.
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Case Description:
US v. Cosby - Supreme Court ruled that common law right (owner has property right to 'heights of heaven and center of the earth') no longer applies. Technology has given airplanes and that all navigable airspace (space needed for safe and efficient air travel) is public domain.
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Case Description:
Rogers v. Board of Road Commissioners for Kent County
TEXAS RECOGNIZES THIS - State has privilege to enter land to step up snow fence posts, but at the end of winter they were supposed to take down the posts. Once they exceed those factors, they are subject to trespass from very beginning. Therefore by not removing the fence posts within the time constraint, they became trespassers to the Roger's land from the moment they put up the posts.
- Legal Means to Enter Property
- Privilege, Invitation and Consent
- Definition of Conversion
- • Based on the ancient common law form of action for trover – plf’ in trover alleged he had lost a chattel which he rightfully possessed, and that the def’ had found it and converted it to his own use
- 4 Requirements of Conversion
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1. Intent on part of def'
2. To exercise control
3. Over goods of another
4. To deprive dominion or control of owner -
Case Description:
Pearson v. Dodd - No conversion b/c plfs' returned the documents and did not deprive owner of use or control.
- Necessity of Demand, Return of Chattel - Majority View
- Conversion occurs as soon as the def' takes dominion and control over the goods in a manner inconsistent w/plfs' ownership
- Necessity of Demand, Return of Chattel - Minority View
- Some states allow an innocent person to return the goods at the same value and is only liable if they refuse to return
- Necessity of Demand, Return of Chattel - Texas View
- You maybe have to make a demand. If def’ acquired goods in good faith, you must first make a demand. If def’ acquired goods wrongfully, then demand is not necessary
- Definition of Privileges
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A privilege to bring about contact, conduct or behavior in question.
Ex - medical consent form - Two options to a def' after being charged
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1. Establish no cause of action
2. Fall back on privileges -
Case Description:
O'Brien v. Cunard - Def’s privilege was “implied consentâ€. Woman gave her arm to the doctor and a reasonable person would see consent when a woman gave her arm to the doctor to administer the shot when she was well aware of her surroundings.
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Case Description:
Hackbart v. Cincinnati - Def’ stated that he did intend to injury plf’, but plf’ gave consent by playing the competitive sport. By engaging in NFL games, he did consent to contact, but NOT ALL contact. It is a fact for the jury to decide whether the contact was beyond reasonable for the game.
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Case Description:
Mohr v. Williams - After surgery, brought suit for battery b/c she was rec’d contact she did not want (he performed operation on the other ear without consent). Could not sue for assault b/c she was unconscious. Court held def' liable.
- 1 of 2 Situations that Require Medical Consent
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1. In order to administer medical treatment, doctor must have consent of patient or someone authorized to speak on behalf of patient
EXCEPTION – if patient is in situation where he may lose life or limb, doctor can perform surgery w/out consent in order to prevent delay - 2 of 2 Situations that Require Medical Consent
- 2. Patient consents and after patient consents, the doctor feels they have to extend the surgery and extend medical care
- Majority View of Consent (Includes TEXAS) –
- You must have consent form patient or someone to speak on behalf of patient.
- Minority View of Consent
- Once patient consents, it is said to be of a “general nature†and patient is consenting to everything dictated by good medical practice.
- Doctrine of Substituted Consent
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Parent can consent for incompetent sibling and consents for the child to donate kid for the other brother
Basis:
1. If incompetent child were competent, he would have consented
2. TEXAS – Does not believe 1st theory, but on basis of benefits derived by the donating child on the prolonged life of their sibling -
Case Description:
DeMay v. Roberts - Plf’ cannot consent if deceived (mother giving childbirth thinks her obstrician brought along another doctor, when in fact he was merely doctor’s assistant)
- Definition of Self Defense Privilege
- Anyone is privileged to use reasonable force to defend himself against a threatened battery on part of another. NO RETALIATION. Once an aggressor has retreated, cannot defend himself.