The Lawletter Vol 36 No 11
Matt McDavitt, Senior Attorney, National Legal Research Group
While a person's entry upon the land of another without consent ordinarily constitutes tortious trespass, there are exceptions to the rule, including privileged entry based on necessity. Factually, privileged entry might occur in a circumstance where a person's property or dependents (i.e., an animal or a child) enters or wanders onto the property of another and necessity dictates that for the parent or owner to retrieve his or her property or offspring, he or she must enter the lands of another. This so-called "privileged entry" exception appears in the Restatement (Second) of Torts:
(1) One is privileged to enter land in the possession of another, at a reasonable time and in a reasonable manner, for the purpose of removing a chattel to the immediate possession of which the actor is entitled, and which has come upon the land otherwise than with the actor's consent or by his tortious conduct or contributory negligence.
(2) The actor is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the chattel is on the land through the tortious conduct or contributory negligence of the possessor.
Restatement (Second) of Torts § 198 (1965). Note that to invoke this privilege, (1) the owner's entry must be reasonable in time and manner, and (2) the property or dependent must not have come onto the land through the owner's tort, consent, or negligence. The official commentary to this Restatement section supplies the further guidance that, ordinarily, the owner must first seek permission to enter from the landowner, and only if this permission cannot be obtained, or asking proves futile (i.e., refusal), may the property owner enter under the privileged-entry exception. This Restatement formulation of the privileged-entry rule has been followed in several jurisdictions. See, e.g., State v. Oldack, 283 So. 2d 73 (Fla. Dist. Ct. App. 1973); State v. Logsdon, 160 Ohio App. 3d 517, 2005-Ohio-1875, 827 N.E.2d 869; Hartsock v. Bandhauer, 158 Ariz. 591, 764 P.2d 352 (Ct. App. 1988).
In Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219 (Wyo. 2002), for instance, a teenage daughter was sent to live with her grandparents out of state while her father was being investigated for alleged physical abuse. The daughter wanted her horse, which was titled in her name, to accompany her to Nebraska, but her parents refused to release the animal from their possession in Wyoming. After involving the authorities to help her, the daughter employed an agent to enter her parents' land, identify her horse, and remove it to her possession. The parents sued, claiming, in part, trespass. The Wyoming Supreme Court, having quoted Restatement § 198, held that
once the parents refused the daughter's request for the return of her horse, she was privileged to enter their real property at a reasonable time and in a reasonable manner to take the horse. No reason exists why she could not accomplish the same through an agent.
Id. ¶ 33, 55 P.3d at 1229-30. Thus, the privileged-entry exception is also exercisable through an owner's agent.
