The name of the most familiar tort protecting real property, trespass, was originally the name of an entire family of actions that first emerged in the 12th and 13th centuries. A plaintiff would commence his case by going to the royal Chancery and purchasing a writ commanding the defendant to come before the courts and explain why he had done such-and-such a thing against the plaintiff’s rights. The Latin phrases used by the Chancery clerks who filled out the writs – and which the royal courts insisted on when hearing a case – came to define individual forms of action. 

One of the earliest such formulaic phrases, and one with one of the longest careers in the common law, was trespass quare clausum fregit (literally, “why he broke the close,” and often abbreviated to “trespass q.c.f.”). The gist of the action was that the defendant, wrongfully, with force and arms (in Latin, vi et armis) and against the King’s peace, had broken into the plaintiff’s enclosed lands and caused injury. As in a trespass action for intentional battery, a plaintiff bringing an action for trespass q.c.f. could obtain money damages to the extent of his injuries. Trespass q.c.f. was the natural cause of action for damaging the plaintiff’s crops or destroying his buildings. 

Another early formula, trespass de ejectione firmae (literally, “of ejection from his term,” and often simply “ejectment”), protected a lessee against being wrongfully evicted from his lands by an intruder. To the extent that the medieval legal mind made such a distinction, ejectment protected not against injury as such but against disposession; by the sixteenth century, the common-law courts would put a victorious plaintiff back in posession. This development made ejectment a potentially attractive way to litigate competing claims to land – in modern terms, to “try title.” Among other things, ejectment (like the other trespass writs) led to a trial before a jury; a defendant sued under an older “writ of right” could elect trial by battle. There was only one problem: ejectment was only available to lessees. The result was one of the great legal fictions of the common law: the fictitious lessee. 

When two parties wished to try the title to a piece of land, one of them leased it to an imaginary person (John Doe) and the other similarly leased to another (William Styles). One lessee ejects the other (this will be all fiction), and in order to try the rights of the lessees the court has to enter into the question of the rights of the lessors. 

THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 374 (5th ed. 1956). This fictional use of ejectment crossed the Atlantic and survived in the captions of famous cases like Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543 (1823) and Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). There were no actual lessees in these cases; they were simply fictitious parties required by the formula of ejectment. 

Today, the distinctions between trespass (q.c.f.) and ejectment are far less significant but not gone entirely. Courts can generally reach any legal issues necessary to resolve a case, regardless of the plaintiff’s initial choice of cause of action, and they have far more freedom to select appropriate legal and equitable remedies, such as money damages for injuries to land or lost income from being out of possession, injunctions to order a defendant to cease trespassing or execute a conveyance to the plaintiff, or declaratory judgments about the state of title. 

One remaining hole in the common-law system was that both trespass and ejectment required some interference with possession, but there are many cases of disputed title in which the parties are civilized enough not to be constantly elbowing each other off the land. The action to quiet title provides a remedy here; it is brought by a plaintiff objecting that another’s claims amount to a “cloud” on her title. Other claimants must either defend and prove their competing title or be estopped from asserting them. Quiet title, for example, is typically the appropriate cause of action to establish that one has acquired title to land through adverse possession, or that an easement has been abandoned through non-use, or that a deed sitting in the land records is void as a forgery. Although frequently quiet title actions are brought in personam against specific claimants, state statutes can authorize in rem quiet title actions that extinguish the rights of all parties, known and unknown, unless they appear to defend their claims. See Arndt v. Griggs, 134 U.S. 316, 327 (1890) (“[A] State has power by statute to provide for the adjudication of titles to real estate within its limits as against non-residents who are brought into court only by publication … .”). Particularly in view of the long-standing “situs rule” giving state courts exclusive jurisdiction over land located within their states, the in rem quiet title action probably survives the Supreme Court’s 20th-century Due Process revolution. 

Originally, the assize of nuisance protected plaintiffs’ rights to use land they did not themselves own (such as a right to pasture cows on another’s land, much like a modern easement) or to be free from some specific harms caused by a neighbor (such as straying cows). In the fourteenth century, plaintiffs began to be able to use writs of trespass to allege a nuisance without needing to plead that the defendant had acted vi et armis, and this new formula developed into a general action for what we would today recognize as nuisnaces: unreasonable interferences with the use and enjoyment of land. (Nuisance was thus an “action on the case”; it belonged to the same branch of non-forcible trespasses as the one from which the modern tort of negligence developed.) In keeping with its origins in actions “on the case,” nuisance has become an extremely versatile cause of action, encompassing a variety of injuries to interests in real property and a variety of potential remedies for those injuries. 

Trespass is also a crime, but it is a surprisingly mild one. Vermont’s basic trespass offense is typical: 

A person shall be imprisoned for not more than three months or fined not more than $500.00, or both, if, without legal authority or the consent of the person in lawful possession, he or she enters or remains on any land or in any place as to which notice against trespass is given by: 

(A) actual communication by the person in lawful possession or his or her agent or by a law enforcement officer acting on behalf of such person or his or her agent; 

(B) signs or placards so designed and situated as to give reasonable notice … 

VT. STAT. tit. 13, § 3705. Many states’ laws contain exceptions relaxing the notice requirement in specified cases where the lack of permission ought to be obvious in context. See, e.g., MD. CODE ANN., CRIM. LAW § 6-408 (making trespass a crime even without specific notice not to enter if the trespass is committed “for the purpose of invading the privacy of an occupant of a building or enclosure located on the property by looking into a window, door, or other opening.”). 

Given the harshness of civil trespass remedies, as in Jacque, what explains the leniency of criminal trespass law? In many states, this mild baseline is supplemented with more severe penalties for certain sorts of trespasses. New York, for example, treats criminal trespass (ordinarily a violation) as a class B misdemeanor when it involves entry onto fenced land, a school or children’s overnight camp, a public housing project, or a railroad yard. N.Y. PENAL L. § 140.10. Are these principled attempts to distinguish among trespasses, or special favors for particular landowners? 

One of the early variants of writs for forcible trespasses, trespass de bonis asportatis (literally, “of taking away goods,” and often abbreviated to “trespass d.b.a”) was available when the defendant carried away the plaintiff’s property, and its remedy was damages. But beyond this simple core, the personal property actions were a confused mess that defies easy description and took many centuries to clean up. The hard part was to determine just what kinds of facts ought to entitle a plaintiff to recover when he could not allege a taking from his possession, perhaps because he had voluntarily parted with possession (e.g. in a bailment) or perhaps because the defendant had not taken them (e.g. for found property). 

One approach was the older writ of detinue, which was available against a bailee who “detained” the goods from the plaintiff. The courts extended detinue so that it ran against other parties (at first the executor of the estate of a deceased bailee, and then anyone) as long as there had been an initial bailment. But since a defendant could defeat detinue by disproving the allegations in the writ, detinue was really only safe when the plaintiff could trace with confidence the chain from his hands to the defendant’s. As a result, detinue “on a bailment” was gradually supplanted by detinue “sur trover” (literally, “upon finding”): the plaintiff alleged that he had lost the property and the defendant had found it but refused to return it. The defendant could show that he had the property rightfully (e.g. through a sale tracing back to the plaintiff), but otherwise “lost and found” was a conveniently broad formula that could cover actual cases of missing property, bailments gone wrong, and even cases of suspected theft. All the plaintiff needed to show was that the property was his and that the defendant now had it. Even so, detinue in its trover variation still was frequently unsatisfactory:

A praecipe action [the general name of a category of writs including detinue] was barred by performance, even imperfect performance, and so in detinue damages could not be awarded if the goods were restored. The bailee who starved a horse to death, or who rode it further than agreed, or who returned other goods in a damaged state, was not liable in detinue. The plaintiff in detinue could not count on a bailment or loss of the thing demanded if it was no longer the same thing as he had bailed or lost, as where it had been made part of something else or fashioned into something new. And on the same principle, it was arguable that he could not allege a detaining of something which no longer existed at all. 

J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 394 (4th ed. 2007). 

The solution lay, yet again, in trespass. The road to reform is paved with legal fictions. The royal courts had no difficulty treating outright theft as satisfying the requirement of trespass d.b.a that the taking be forcible. But plaintiffs soon started pleading claims of trespass d.b.a for injuries to horses against defendants named Smith, and claims for the forcible chopping up of lumber against defendants described as carpenters. These were garden-variety contract actions (for defectively shoeing a horse or for botching a construction job) – or would have been, if the common law had had an effective form of action for breach of contract. It didn’t, and so plaintiffs who could stretched the facts to fit within trespass d.b.a. The royal courts solved this particular problem around 1350 by abandoning the need to plead vi et armis in trespass, as long as the plaintiff could set forth in more detail the special facts entitling him to recover. This was the origin of actions on the case, mentioned above; it had the effect of kickstarting a burst of creative experimentation with new variation of trespass. 

One approach, reflecting bailments’ place on the border between property and contract, was to plead that the defendant had negligently or deceitfully violated a promise to keep the goods safe. Another was to plead that a bailee had intentionally converted goods to his own use – as with a bailee who drinks a bottle of wine or spends the silver coins in a strongbox. This latter idea had staying power; by the 16th century, trespass on the case for conversion was regularly used against bailees. Then history repeated itself: just as detinue was extended from bailees to third parties by alleging the fictitious finding called trover, so was conversion. A plaintiff could even plead that he had “lost” his ship and that the defendant had “found” it in London. The final stage in conversion’s triumph was to treat a wrongful withholding itself – the old “detinue” – as a form of conversion to the defendant’s own use. And with that, the modern tort of conversion or trover took shape: the plaintiff claimed that the property was his and that the defendant had treated it as his own. The defendant might still have the property, or might not; the property might still exist, or it might have been destroyed; what mattered was the defendant’s use in a manner inconsistent with the plaintiff’s ownership resulting in the plaintiff’s dispossession. As the Restatement puts it, “Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” RESTATEMENT (SECOND) OF TORTS § 222A (1965). 

What if the defendant merely damages the plaintiff’s property, or interferes with its use, but stops short of converting it – as by breaking the headlights on the plaintiff’s car, or taking it for a forty-eight-hour joyride? Conversion traditionally did not quite work here; instead the plaintiff’s remedy lay in trespass to chattels, which evolved from the original action for trespass d.b.a. Its use in a case of forcible misuse (like smashing headlights or temporary taking) was straightforward enough. Over time, courts extended its use to other cases involving indirect or non-forcible harms. But unlike with trespass to land – which as Jacque shows is actionable even without harm to the property – the Restatement says that trespass to chattels requires that the defendant deprive the plaintiff of possession, impair the value of the property, or deprive the plaintiff of its use. RESTATEMENT (SECOND) OF TORTS § 218. See also Intel v. Hamidi, 71 P.3d 296 (Cal. 2003) (no trespass to chattels for sending emails addressed to Intel employees to Intel computers over Intel’s objections). 

A final member of the property torts family is replevin. Initially, it was a purely feudal form of action. If a tenant failed to perform the feudal services due to his lord, the lord could “distrain” the tenant’s personal property by taking possession of it. The tenant’s remedy for a wrongful distraint was replevin: by posting a bond of twice the value of the property, the tenant was entitled to possession immediately while the suit over the underlying dispute proceeded. As the feudal character dropped out of the landlord-tenant relationship, replevin became a general-purpose action to recover possession of property wrongfully withheld. Its immediate-recovery remedy made it attractive to plaintiffs who just wanted their stuff back, particularly in the United States. (“Mattie Ross: The saddle is not for sale. I will keep it. Lawyer Dagget will prove ownership of the gray horse. He will come after you with a writ of replevin.” TRUE GRIT (Paramount Pictures 2010)). Today in some states it remains at least the name of the action to recover possession, although it has often been superseded by procedures to recover possession in state civil procedure codes. 

Criminal law also protects personal property ownership and possession. The menu of common-law personal property crimes bore the same confused stamp of history as the menu of personal property torts. Larceny required a felonious carrying away from possession; over time, both the carrying away and the possession became thin shadows of their former selves, but not quite fictional. Larceny by trick, at least in theory, plugged the gap for owners who parted with possession voluntarily under the influence of fraudsters’ lies; embezzlement covered faithless bailees and employees who abused their positions of trust to steal from the cash register, literally or metaphorically. Robbery was theft achieved by a threat of violence. Looking back on the fine distinctions courts contrived to distinguish these various crimes (e.g., in Bazely’s Case, (1799) 168 Eng. Rep. 517 (Cent. Cr. Ct.), the court held it was embezzlement for a teller to put money in a bank drawer and then put it in his pocket, but not embezzelement for the teller to put the money in his pocket directly), it is hard not to concur with historian S.F.C. Milsom’s assessment: “The miserable history of crime in England can shortly be told. Nothing worth-while was created.” S.F.C. MILSOM, HISTORICAN FOUNDATIONS OF THE COMMON LAW 353 (1969). Many states, influenced by the Model Penal Code, have tried to reform their theft statutes to create a single, integrated law of theft. See generally STUART P. GREEN, 13 WAYS TO STEAL A BICYCLE: THEFT LAW IN THE INFORMATION AGE 4 (2012) (arguing that “theft law reformers threw out the baby with the bathwater”). But hard problems remain, such as defining the kinds of property that can be “stolen” at all – e.g., is it theft to sneak into a movie without paying or to download that movie on BitTorrent, or is “theft” simply the wrong word to describe conduct that deprives no one else of their possession and enjoyment?