What happens if someone is mistaken with regard to her property line and accidentally builds on her neighbors property? Would she have to pay damages or tear down whatever she had built? Assume for a moment that two neighbors built houses and garages on their adjacent lots. Assume as well that Neighbor A’s garage encroached onto neighbor B’s property by a few feet and A was unaware of the encroachment. The question becomes whether B can sue A for Trespass.
The tort of Trespass to Land requires intentional entry onto the land of another. The intent is shown here because A intentionally built a garage on the land. It didn’t just magically appear. Mistake is not a defense to trespass, so it does not matter that A did not know that he was building on land that didn’t belong to him.
In common sense terms, assume a farmer owns a large farm and a developer comes along and buys the property behind the farmer to build town homes. Now assume that the developer misreads the lot description and accidentally puts one of those town homes on the farmer’s property. Would it be fair for the builder to be able to simply say “Well. I made a mistake, so I shouldn’t have to pay for any damages or tear down the home.” This obviously would not be acceptable. The
fact of the matter is that the builder built a town home on the farmer’s property and the farmer should be compensated for any damage caused. The farmer may not end up making the builder tear down the town home, but now since the farmer’s farm is smaller, she will not be able to sell it for as much money, so she could sue the builder for the value of the land he encroached upon.