Attorney for: APPLETREE COTTAGE LLC SIGMUND D SCHUTZ - PRETI
FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: APPLETREE COTTAGE LLC LAURA RIDEOUT - PRETI
FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: APPLETREE COTTAGE LLC JONATHAN BROGAN - NORMAN
HANSON & DETROY LLC
Attorney for: THOMAS M EGAN SIGMUND D SCHUTZ - PRETI FLAHERTY
BELIVEAU PACHIOS LLP
Attorney for: THOMAS M EGAN J WILLIAM DRUARY JR - MARDEN
DUBORD BERNIER & STEVENS PA LLP
Attorney for: THOMAS M EGAN JONATHAN BROGAN - NORMAN HANSON
& DETROY LLC
Attorney for: CAPTAIN ELLIOT LLC SIGMUND D SCHUTZ - PRETI
FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: CAPTAIN ELLIOT LLC JONATHAN BROGAN - NORMAN
HANSON & DETROY LLC
ORDER
THOMAS
D. WARREN, JUSTICE, SUPERIOR COURT
At the
conclusion of the non-jury trial in this case, the court was
prepared to award nominal damages to counterclaim-plaintiff
Christopher Bond on his claim of common law trespass.
Counterclaim-defendant Thomas Egan never disputed that he had
entered Bond's property on three occasions to investigate
whether Bond was violating or preparing to violate a
restrictive covenant. Egan did not damage or disturb
Bond's property or enter any structures, but he took
photographs on two of the occasions. On the first of those
occasions Egan entered without authorization or consent from
Bond.
The
reason why the court reserved decision on the common law
trespass claim was that Bond argued that his own subsequent
unauthorized entry on Egan's land - although not the
subject of any claim in this action - had been privileged. If
Bond's entry had been privileged, there was at least a
question whether Egan's entry was similarly privileged.
A
person who intentionally enters land in possession of another
without authorization commits a trespass regardless of
whether he causes any damage. Restatement (Second) Torts
§ 163; Medeika v. Watts, 2008 ME 163 ¶ 5,
957 A.2d 980. Bond had not posted any no trespassing sign,
and he had never informed Egan that he could not enter.
However, the court can find no authority for the proposition
that authorization to enter a neighbor's property may be
presumed.[1]
There
was testimony at trial that on September 3, 2015, after
Egan's first entry, Bond sent one or more emails
authorizing Egan to go to his property (the actual exchange
of emails was not offered or admitted into evidence).
Although the court has found that it is more likely than not
that Egan did not enter Bond's land on September 3
itself, the court concludes that Bond's emailed
permission constituted consent (never revoked) for Egan's
subsequent two entries.
Nevertheless,
Egan's first entry was unauthorized. The existence of the
restrictive covenant did not provide Egan with a privilege to
enter Bond's land to investigate a potential violation of
the covenant. In contrast with Willow Lake Residential
Association v, Juliano,80 So.2d 226, 248-49
(Ala.App. 2010), the restrictive covenant in ...