What Is Property Right

When you say，“This is my house.” What does that mean，exactly？ The property right is frequently said to be a “bundle of rights”，including the right of possession，the right to allow others to enter，the right to exclude，the right to benefit from it，and so on.Take the right to exclude，for example.Without your permission，others may not enter your property，or，it will be an act of “trespass”–invasion of your property right–to which the law provides some remedies.One form of remedy is the damages.If the trespasser comes onto your land and takes something or causes some physical harm，he is liable for monetary damages.But，what if the intruder simply comes onto your land，without actually causing any physical harm，what can you do？

Jacque v.Steenberg Homes，Inc.

Supreme Court of Wisconsin，1997

563 N.W.2d 154

[Steenberg Homes had a mobile home to deliver.Unfortunately for Harvey and Lois Jacque (the Jacques），the easiest route of delivery was across their land.Despite adamant protests by the Jacques，Steenberg plowed a path through the Jacques’ snowcovered field and via that path，delivered the mobile home.Consequently，the Jacques sued Steenberg Homes for intentional trespass.At trial，Steenberg Homes conceded the intentional trespass，but argued that no compensatory damages had been proved，and that punitive damages could not be awarded without compensatory damages.Although the jury awarded the Jacques $1 in nominal damages and $100，000 in punitive damages，the circuit court set aside the jury’s award of $100，000.The court of appeals affirmed，reluctantly concluding that it could not reinstate the punitive damages because it was bound by precedent establishing that an award of nominal damages will not sustain a punitive damage award.]

WILLIAM A.BABLITCH，JUSTICE.This case presents three issues：(1） whether an award of nominal damages for intentional trespass to land may support a punitive damage award and，if so； (2） whether the law should apply to Steenberg or should only be applied prospectively and，if we apply the law to Steenberg； (3） whether the$100，000 in punitive damages awarded by the jury is excessive.

Steenberg argues that，as a matter of law，punitive damages could not be awarded by the jury because punitive damages must be supported by an award of compensatory damages and here the jury awarded only nominal and punitive damages.The Jacques contend that the rationale supporting the compensatory damage award requirement is inapposite when the wrongful act is an intentional trespass to land.We agree with the Jacques.

The general rule was stated in Barnard v.Cohen，162 N.W.480 (Wis.1917），where the question presented was：“In an action for libel，can there be a recovery of punitory damages if only nominal compensatory damages are found？” With the bare assertion that authority and better reason supported its conclusion，the Barnard court said no.Barnard continues to state the general rule of punitive damages in Wisconsin.The rationale for the compensatory damage requirement is that if the individual cannot show actual harm，he or she has but a nominal interest，hence，society has little interest in having the unlawful，but otherwise harmless，conduct deterred，therefore，punitive damages are inappropriate.

However，whether nominal damages can support a punitive damage award in the case of an intentional trespass to land has never been squarely addressed by this court.Nonetheless，Wisconsin law is not without reference to this situation.In 1854 the court established punitive damages，allowing the assessment of “damages as a punishment to the defendant for the purpose of making an example”.Mc Williams v.Bragg[3] (1854）.The Mc Williams court related the facts and an illustrative tale from the English case of Merest v.Harvey (1814），to explain the rationale underlying punitive damages.

In Merest，a landowner was shooting birds in his field when he was approached by the local magistrate who wanted to hunt with him.Although the landowner refused，the magistrate proceeded to hunt.When the landowner continued to object，the magistrate threatened to have him jailed and dared him to file suit.Although little actual harm had been caused，the English court upheld damages of 500 pounds，explaining “in a case where a man disregards every principle which actuates the conduct of gentlemen，what is to restrain him except large damages？”

To explain the need for punitive damages，even where actual harm is slight，Mc Williams related the hypothetical tale from Merest of an intentional trespasser：

Suppose a gentleman has a paved walk in his paddock，before his window，and that a man intrudes and walks up and down before the window of his house，and looks in while the owner is at dinner，is the trespasser permitted to say “here is a halfpenny for you which is the full extent of the mischief I have done.” Would that be a compensation？ I cannot say that it would be….

Thus，in the case establishing punitive damages in this state，this court recognized that in certain situations of trespass，the actual harm is not in the damage done to the land，which may be minimal，but in the loss of the individual’s right to exclude others from his or her property and，the court implied that this right may be punished by a large damage award despite the lack of measurable harm.

The Jacques argue that both the individual and society have significant interests in deterring intentional trespass to land，regardless of the lack of measurable harm that results.We agree with the Jacques.An examination of the individual interests invaded by an intentional trespass to land，and society’s interests in preventing intentional trespass to land，leads us to the conclusion that the Barnard rule should not apply when the tort supporting the award is intentional trespass to land.

We turn first to the individual landowner’s interest in protecting his or her land from trespass.The United States Supreme Court has recognized that the private landowner’s right to exclude others from his or her land is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Dolan v.City of Tigard (1994）.This court has long recognized “ [e]very person[’s] constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.” Diana Shooting Club v.Lamoreaux (1902） (holding that the victim of an intentional trespass should have been allowed to take judgment for nominal damages and costs）.Thus，both this court and the Supreme Court recognize the individual’s legal right to exclude others from private property.

Yet a right is hollow if the legal system provides insufficient means to protect it.Felix Cohen offers the following analysis summarizing the relationship between the individual and the state regarding property rights：

That is property to which the following label can be attached：

To the world：

Keep off X unless you have my permission，which I may grant or withhold.

Signed：Private Citizen

Endorsed：The state

Felix S.Cohen，Dialogue on Private Property，9 Rutgers Law Review 357，374(1954）.

Harvey and Lois Jacque have the right to tell Steenberg Homes and any other trespasser，“No，you cannot cross our land.” But that right has no practical meaning unless protected by the State.And，as this court recognized as early as 1854，a “halfpenny” award does not constitute state protection.

The potential for harm resulting from intentional trespass also supports an exception to Barnard.A series of intentional trespasses，as the Jacques had the misfortune to discover in an unrelated action，can threaten the individual’s very ownership of the land.The conduct of an intentional trespasser，if repeated，might ripen into prescription or adverse possession and，as a consequence，the individual landowner can lose his or her property rights to the trespasser.

In sum，the individual has a strong interest in excluding trespassers from his or her land.Although only nominal damages were awarded to the Jacques，Steenberg’s intentional trespass caused actual harm.We turn next to society’s interest in protecting private property from the intentional trespasser.

Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner.Society has an interest in preserving the integrity of the legal system.Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished.When landowners have confidence in the legal system，they are less likely to resort to “self help” remedies.In Mc Williams，the court recognized the importance of “prevent[ing]the practice of dueling，[by permitting] juries to punish insult by exemplary damages.”Although dueling is rarely a modern form of self-help，one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser，like Steenberg，who refuses to heed no trespass warnings.

People expect wrongdoers to be appropriately punished.Punitive damages have the effect of bringing to punishment types of conduct that，though oppressive and hurtful to the individual，almost invariably go unpunished by the public prosecutor.The $30 forfeiture was certainly not an appropriate punishment for Steenberg’s egregious trespass in the eyes of the Jacques.It was more akin to Merest’s “halfpenny”.If punitive damages are not allowed in a situation like this，what punishment will prohibit the intentional trespass to land？ Moreover，what is to stop Steenberg Homes from concluding，in the future，that delivering its mobile homes via an intentional trespass and paying the resulting Class B forfeiture，is not more profitable than obeying the law？ Steenberg Homes plowed a path across the Jacques’ land and dragged the mobile home across that path，in the face of the Jacques’ adamant refusal.A $30 forfeiture and a $1 nominal damage award are unlikely to restrain Steenberg Homes from similar conduct in the future.An appropriate punitive damage award probably will.

In sum，as the court of appeals noted，the Barnard rule sends the wrong message to Steenberg Homes and any others who contemplate trespassing on the land of another.It implicitly tells them that they are free to go where they please，regardless of the landowner’s wishes.As long as they cause no compensable harm，the only deterrent intentional trespassers face is the nominal damage award of $1，the modern equivalent of Merest’s halfpenny，and the possibility of a Class B forfeiture.We conclude that both the private landowner and society have much more than a nominal interest in excluding others from private land.Intentional trespass to land causes actual harm to the individual，regardless of whether that harm can be measured in mere dollars.Consequently，the Barnard rationale will not support a refusal to allow punitive damages when the tort involved is an intentional trespass to land.Accordingly，assuming that the other requirements for punitive damages have been met，we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land….

In conclusion，we hold that when nominal damages are awarded for an intentional trespass to land，punitive damages may，in the discretion of the jury，be awarded.Our decision today shall apply to Steenberg Homes.Finally，we hold that the $100，000 punitive damages awarded by the jury is not excessive.Accordingly，we reverse and remand to the circuit court for reinstatement of the punitive damage award.

Intentional Trespassing(Jacque v.Steenberg Homes，Inc.）

Notes and Questions

1.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，which we take up in Chapter III，is the establishment of ownership by an intruder that takes place when the intruder occupies land without permission，and the statute of limitations runs before the owner could successfully challenge 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 whether they should be allowed to recover $100，000 in punitive damages？

2.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 nearabsolute right to exclude others？

3.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？

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.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？

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[1]See，Boomer v.Atlantic Cement Co.

[2]See，Hawaii Housing Authority v.Midkiff.

[3]Because Mc Williams was an action of trespass for assault and battery，we cite it not for its precedential value，but for its reasoning.