Trespass and Witnesses

No surveyor would ever consider going onto someone's land just to look for a boundary corner, or whatever, without the permission of the property owner; nevertheless, all surveyors should still be aware of and understand the elements of trespass. In 1995, a property owner in Maryland filed an action against his neighbor for negligently trespassing on his property and cutting some trees located in a ravine. Of course, cutting a limb off a tree located on an adjoining property is another act that a surveyor would never consider doing, even if it was just to get a clear line of sight …



This recent unreported Maryland case, captioned as Clay v. Fahey, CSA, No. 1038, September Term, 1998, had to do with the legal action of trespass. In the spring of 1995, Dr. Fahey decided that he wanted to have a view of the water from his house, which required trimming some of the trees growing in the ravine between his house and the Severn River. Because Fahey believed that the trees he wanted to have trimmed were on property belonging to Dr. and Mrs. Jacobs, he spoke to Mrs. Jacobs about trimming them. Fahey testified at trial that Jacobs had given permission to have trees cut on his property.

Fahey pointed out to a representative of the landscaping company (hired to cut the trees) where the adjoining "Dr. Jacobs property" was and mentioned that he had permission from the Jacobses to trim the trees in this area. However, another neighbor, Mr. Clay, the appellant, was soon informed by his wife at work that two men were cutting trees on their property and not on the Jacobses' property!

Clay then filed an action for treble damages against Fahey for negligently trespassing on his property and cutting trees in the ravine, whereupon Fahey filed a third-party complaint against the landscapers he had hired to remove the trees. In a separate lawsuit arising from the same incident, Jacobs and his wife sued the landscapers in District Court, with this suit later being transferred to the Circuit Court and consolidated and tried with the appellant's lawsuit. After the trial, the Court granted judgment for Fahey, and this appeal followed.

The Appeals Court first stated that in an act of trespass, the burden is on the plaintiff to prove possession.

The gist of the action of trespass is injury to the possession, and therefore any person in actual and exclusive possession of real property at the time of the trespass, even though he had no title whatever, may maintain the action of trespass against any person who had no title himself or authority from the real owner.

But, as was pointed out by the Appeals Court, to prove trespass, one must prove the bounds of the property that one is claiming to possess. That is, to recover in trespass, one must establish where on the face of the earth the boundary lines of the property are located.

In the Clay case, the appellant (Clay) attempted to introduce evidence to the effect that the boundary of his property was in the area of the ravine where the cutting was performed; however, no witnesses had the expertise to testify as to the location of the boundary lines of his property. No documents were properly authenticated to establish boundary lines, and no witness was competent to testify that the boundaries set forth in such properly authenticated documents were in the ravine itself. Clay sought to testify that an unauthenticated plat of his property showed the boundaries of his property, as did an aerial photograph of the area. Because he was not qualified, and the only information to support his claim as to the location of the boundaries of his property was "hearsay," he was properly not permitted to testify that the particular trees at issue were on a part of the ravine that lay within the boundaries of his property.

Clay offered the testimony of Keith Underwood, whom he contracted to conduct a census of the trees that had been cut, and Underwood testified to the boundary lines of the property. The Appeals Court stated that Underwood (who was not a surveyor) had neither the qualifications to survey the property himself nor the basis with which to formulate an opinion as to boundary lines. The Court further stated that none of the witnesses called by Clay had the qualifications or the basis to testify about the location of his property boundaries and that the Trial Court had properly barred such testimony.

Expert Witness Request Denied

After Clay's attempts with Underwood failed, he sought "leave of the Court" to offer the testimony of the surveyor who had surveyed the land and "put up" the stakes, although that surveyor had never been identified prior to trial as an expert or a fact witness. Three full days of trial had already elapsed by this time, and the trial judge denied Clay's request. As the Appeals Court pointed out:

The prejudice to the appellees at the time of trial if the surveyor had been permitted to testify would have been high. There was no opportunity to depose the surveyor, Underwood had already testified, and the defendants would have had questionable opportunity to seek out an expert in response. Moreover, appellant made no proffer to the Trial Court that a surveyor was available. Based on the above factors, there was no abuse of discretion by the Trial Court denying the appellant's request for a continuance.

The Trial Court repeatedly articulated most clearly the problem Clay faced: there was no evidence to establish that the cutting took place on some portion of Clay's property as opposed to the property owned by the Jacobses. Accordingly, there was a fundamental failure to establish an element of a claim in either negligence or trespass—that the plaintiff either owned, or possessed, the land on which the cutting took place.


James J. Demma is an attorney with offices located in Rockville, Maryland, and a Contributing Editor for the magazine.

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