Chapter 74: Trespass

§74.1 Generally

The Case: Stone v. Harris , App. No. 86-237-II, 1987 WL 13400 (Tenn. Ct. App. Jul. 8, 1987).

The Basic Facts: Plaintiff alleged that defendant buried a horse on plaintiff's property and damaged a spring.

The Bottom Line:

  • "When chattels are on the premises of another, without the fault of either the chattel owner or the property owner, the owner of the goods is privileged to enter the land to remove the chattels. Shehyn v. U.S., 256 A.2d 404, 406 (D.C. 1969). [See 1 F. Harper & F. James, The Law of Torts § 1.17 at 55 (2d ed. 1986)]. However, where a person has a limited right of entry and abuses this privilege, the party is trespassing. Crawford v. Maxwell, 22 Tenn. (3 Hum.) 476, 477 (1842). Furthermore, if a person intentionally fails to remove from the land a chattel which he is under a duty to remove, his actions constitute a trespass. See [RESTATEMENT (SECOND) OF TORTS § 158(c) (1976)]." 1987 WL 13400 at *2.
  • "The evidence supports the Harrises' arguments that they maintained proper fences and that the horses broke through the fence without the fault of either party. Thus, the Harrises were entitled to enter upon Mr. Stone's property to recapture the animal. However, when the Harrises failed to remove the mare and decided to bury it on Mr. Stone's farm, they were trespassing." Id.
  • "Negligence is the absence of ordinary care a person of reasonable prudence would have exercised. Street v. National Broadcasting Co., 512 F.Supp. 398, 407 (E.D. Tenn. 1977); Grady v. Bryant, 506 S.W.2d 159, 161 (Tenn. Ct. App. 1973). Ordinary care is defined as that degree of care warranted under similar circumstances. Coleman v. Brynes, [242 S.W.2d 85, 89 (Tenn. Ct. App. 1950)]. The determination of ordinary care is dependent upon the particular facts of each case. Ledford v. Southeastern Motor Truck Lines, [200 S.W.2d 981, 984 (Tenn. Ct. App. 1946)]." Id.
  • "In order to recover under the theory of negligence the plaintiff must prove, by a preponderance of the evidence, that (a) the defendant owed the plaintiff a duty of care, (b) the defendant breached this duty, and (c) that plaintiff's injuries resulted from this breach. German v. Nichopoulos, 577 S.W.2d 197, 201 (Tenn. Ct. App. 1978). Everyone is under a duty to avoid injury to a neighbor's person or property. DeArk v. Nashville Stone Setting Corp., [279 S.W.2d 518, 522 (Tenn. Ct. App. 1955)]." Id.
  • "Mr. and Mrs. Harris were under a duty not to damage the property of Mr. Stone in their efforts to deal with their dead horse. Mr. Billy Stewart, who was hired to remove the remains of the horse from the spring, testified that the bulldozer used to bury the horse destroyed the spring by diverting the flow of its water. By burying the horse on Mr. Stone's property, the Harrises breached their duty not to injure their neighbor's property. They did not act with ordinary care under the circumstances. Their actions were the proximate cause of the damage to Mr. Stone's spring." Id.
  • "A plaintiff may recover damages resulting from the natural and proximate consequences of defendant's negligence. Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 233 (Tenn. Ct. App. 1976). There is no mathematical formula for computing damages in negligence cases. Smith v. Bullington, 499 S.W.2d 649, 661 (Tenn. Ct. App. 1973). Thus, Mr. and Mrs. Harris are liable for all losses proximately caused by their tortious conduct." Id. at *3.
  • "Damages for trespass are calculated in light of the circumstances of each case. Jones v. Allen, 38 Tenn. (1 Head) 626, 635 (1858). In addition to nominal damages, the injured party may also recover all consequential damages flowing from the trespass. Damron v. Roach, 23 Tenn. (4 Hum.) 134, 136 (1843) and Price v. Osborne, [147 S.W.2d 412, 413 (Tenn. Ct. App. 1940)]. However the proof in the record must indicate the value of the property in order to recover damages. Lay v. Bayless, 44 Tenn. (4 Cold.) 246, 247 (1867)." Id.

Recent Cases: Vaught v. Jakes , No. M2007-01858-COA-R3-CV, 2009 WL 2357108 (Tenn. Ct. App. May 26, 2009) (reversing dismissal of trespass claim because evidence showed that individual who sold the property to the defendant abandoned easement and thus defendant had no right to use the land).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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