Notes and Comments
1.There is no dispute in this case that Steenberg Homes committed an intentional trespass by moving the mobile home across the Jacques’ farm field.The law of intentional trespass is “exceptionally simple and exceptionally rigorous.” Wil-liam L.Prosser,TORTS 63 (4th ed.1971).Any intentional intrusion that deprives another of possession of land,even if only temporarily,is considered a trespass.Restatement (Second) of Torts § 158.Intentional trespass is a strict liability tort:There is no inquiry into the balance of interests between the plaintiff and defendant or whether the intrusion was reasonable.Perhaps most strikingly,someone who commits an intentional trespass is subject to liability “irrespective of whether he thereby causes any harm to any legally protected interest of the other.” Id. In this sense,trespass to land is like the tort of battery.As one English judge put it:“If a man gives another a cuff on the ear,though it cost him nothing,no not so much as a little diachylon,yet he shall have his action;for it is a personal injury.So a man shall have an action against another for driving over his ground,though it do him no damage;for it is an invasion of his property,and the other has no right to come there.” Ashby v.White,2 Ld.Raym.938,955 (K.B.1703),92 Eng.Rep.126,137 (Lord Holt).Does this suggest that a person’s land is seen as an extension of his body,and that the law protects both in order to vindicate fundamental rights of personal autonomy?
2.One historical explanation for the absence of any harm requirement is that the action for trespass to land was often used to resolve disputes over title to land.Suppose A and B are neighbors and they disagree about the location of the boundary between their properties.Even though neither has done anything to harm the other,A can sue B (or vice versa) for trespass,and the court in the course of deciding the dispute will determine where in fact the boundary lies between their two parcels.If a showing of harm were required,then either A or B would have to take some action.Like erecting a fence or trampling a flower bed.In order to get the boundary dispute resolved,but it is obviously undesirable to require harmful acts from persons who would not otherwise undertake them,simply in order to resolve their respective rights to land.With the twentieth-century development of so-called quiet title actions (in which any interested person can seek a declaratory judgment resolving a dispute over title to land),however,this rationale has lost most of its force.Does this reform suggest that the action for trespass should now be limited to intrusions that cause actual harm?
3.Did the Jacques have a sound reason for refusing permission to Steenberg Homes to move the mobile home across their field? The Jacques testified that they were sensitive about intrusions on their land because they had lost some of their property in an adverse possession lawsuit.Adverse possession is a transfer of ownership that takes place when someone occupies land without permission,and the statute of limitations runs before the owner challenges the occupation.If the Jacques had given their permission to Steenberg employees to cut across their land,there would have been no basis to assert a claim for adverse possession.In any event,the statute of limitations for challenging trespass to land in Wisconsin is 20 years,and the Steenberg moving operation would last only a few hours.So the Jacques’ stated reason for objecting to the shortcut had no objective basis in law.Should this make a difference in deciding whether they should be allowed to sue for trespass,or to whether they should be allowed to recover $100,000 in punitive damages?
4.Even if the Jacques had no sound reason for objecting to Steenberg Homes cutting across their land,why might the legal system want a rule that always (or nearly always) requires permission of the owner before people are allowed to intrude? Most of the Wisconsin Supreme Court’s discussion of this point seems to assume the conclusion: The right to exclude must be enforced because it is an important right.The court suggests two reasons for strictly enforcing such a right:to avoid potential violence and protect privacy rights.But is either concern implicated in the facts of this case? Should that matter in deciding whether to apply the strict rule? Are these arguments ultimately circular? People might not resort to violence to repel intruders if they understood that they did not have the right to exclude trespasses that do no injury to their land.And people might not be so sensitive about their privacy rights if these trespasses were tolerated.Can you think of other reasons for giving owners a near-absolute right to exclude others?
5.Maneuvering a mobile home around a sharp curve in a country road with seven feet of snow on the ground sounds like it might be quite dangerous,and could risk bodily injury to Steenberg employees or physical damage to the mobile home.Do you think the court should have taken this into account? Courts in some circumstances have recognized a defense of necessity to an action for trespass.Should Steenberg Homes be able to claim necessity here? If not,why not?
6.The U.S.Supreme Court has held that “grossly excessive or arbitrary”punitive damages awards violate due process,State Farm Mutual Automobile Ins.Co.v.Campbell (2003),and has indicated that ratios of punitive to compensatory damages exceeding nine to one are presumptively suspect as a matter of constitutional law.The punitive damages in Jacque are 100,000 times the compensatory damages.The Court also has instructed that one factor in determining whether an award is excessive is the relationship between the award and the maximum civil or criminal penalty the state authorizes for similar conduct.State Farm;BMW of North America,Inc.v.Gore (1996).According to an omitted portion of the opinion in Jacque,the maximum fine under Wisconsin law for misdemeanor trespass was $1,000.The award in Jacque is 100 times this amount.On both measures,therefore,the punitive damages award seems suspect.On the other hand,the Court has also noted that an award in excess of nine times compensatory damages“may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages.” Does this exception apply here?Is the $1,000 ceiling set by the legislature for misdemeanor trespass an accurate benchmark of the social consequences of intentional trespass to unenclosed land?Is it possible that the purpose of the criminal trespass provision is not really to deter trespasses,so much as to provide a mechanism for the sheriff’s department to mediate disputes like the one between the Jacques and Steenberg Homes?
7.The Blackstonian Doctrine and the issue of “Sunbursting.” It is a common law principle and a Blackstone’s philosophical belief that judges do not make new laws,but discover or announce them.Coupled with the doctrine of stare decisis,once a legal principle has been established by a case,it becomes a precedent and must be followed by judges in future cases.If,however,a rule has been determined to be erroneous and overruled by a court,such a decision should be effective only for future cases prospectively,rather than affecting the case at hand retroactively because what happened in that case had happened before the date of announcement of the new rule,which was still a law in effect on that day.
This is in line with the U.S.constitutional principle (although not relating to judicial operation) that no expost facto laws be made – meaning what was a legal act cannot be made illegal by a later announced law.You can change the law,but it affects only future acts.This is called “prospective overruling” or “Sunbursting.”
It came from a 1932 case in Montana,Great Northern Railway Company v.Sunburst Oil & Refining Company (91 Mont.216 (1932)),in which Sunburst,being a shipper,sued Great Northern for excessive shipping charges and recovered a refund under a 1921 case law.On appeal,the 1921 case was overruled by Montana Supreme Court which,however,refused to apply the new rule retroactively to Great Northern.
8.“Prospective overruling” or Sunbursting is both reasonable and troublesome.It is reasonable because it works with the Blackstonian doctrine and the legal principle of res judicarta,because the precedent stood for the old principle and people should not be punished for following it.You may change the rule,as time changes,but it should affect only future cases.(https://www.daowen.com)
On the other hand,it does not sound fair for the party who raises the issue and files the lawsuit;it wouldn’t take the money and time into the litigation had it known that it might win the lawsuit but would not able to benefit from it.Moreover,the federal court,under the U.S.Constitution,can only make decision for “cases and controversies,” i.e.,actual cases,by not issuing “judicial advisory opinions” for hypothetical disputes.A judicial opinion that does not affect real life disputes but only future cases would sound more like an advisory opinion on a hypothetical case.
So far,stare decisis,res judicarta,no ex post facto law requirement,and the Blackstonia doctrine all control the outcome of a case,and there seems no definite answer as to whether a court must “Sunburst” or not.
[1]See,e.g.,the “McDonald’s Coffee Case” where a jury awarded $2.86 million (reduced to $640,000 by judge),http://en.wikipedia.org/wiki/Liebeck_v._McDonald’s_Restaurants,and the Starbuck “Hot Tea” cases.
[2]See,Justice Marshall’s comment in the opinion of Piper Aircraft C.v.Reyno,454 U.S.234(1981).
[3]See,Pacific Mutt.Life Ins.Co.v.Haslip (U.S.1991).
[4]See,Roginsky v.Richardson-Merrell,Inc. (2d Cir.1967).
[5]Although Steenberg cites Sunderman v.Warnken,251 Wis.471,29 N.W.2d 496 (1947),for the proposition that the Barnard rule applies to a trespass case,we disagree.Barnard,165 Wis.417.In Sunderman,the court affirmed the order dismissing the tenants action against the landlord for wrongful and illegal entry.The court held that “a landlord who entered the leased premises in order to make necessary repairs,as required by public officials” had not violated the lease,i.e.,the court found that there had not been a wrongful entry.In light of this holding,any discussion of the Barnard rule was dicta.Sunderman,251 Wis.at 477.
[6]Because McWilliams was an action of trespass for assault and battery,we cite it not for its precedential value,but for its reasoning.
[7]Judge Thomas Fairchild has suggested that “[i]f one thinks of a judicially pronounced new rule of law as the rosy dawn of a new day,‘sunbursting’ has an appropriate connotation.” Thomas E.Fairchild,Limitation of New Judge-Made Law to prospective Effect Only: “Prospective Overruling”or “Sunbursting”,51 Marq.L.Rev.254,255 (1967-68).However,the illustrative nature of the term is purely coincidental.Prospective overruling earned the nickname “sunbursting” from the name of a party to litigation involving prospective application.Great Northern Railway Company v.Sunburst Oil & Refining Co.,287 U.S.358 (1932).