Who is trespasser? Give Them Advice!
Authors: Peter Dimitrov, Zdravka Dzhandarmova
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Samuel v Gina
It is uncertain, but in the last reckoning doubtful that Samuel would have the right to recover damages from Gina for trespass to land. (An action for a trespass on the case is a different question, but that is explained below.) Trespass is “a direct intrusion upon land in the possession of the claimant” (Card et al., 2011, p 317). Let it be assumed that Samuel is in possession and not an absentee landlord (in which case the tenant would have the right to sue, unless Samuel proved damage lasting beyond reversion at tenancy’s end); even so, for Samuel to recover in trespass, Gina would have had to cause the toxins to cross over the boundary into Samuel’s property in person, as by accidentally spilling it while stacking the containers. On the facts of this case, the containers “leaked” at a later date, and not “were spilled” at the time, so that the immediate agency of Gina was not involved in their intrusion onto Samuel’s land; therefore, an action in trespass should not lie.