The neighbors knocked down a fence and started using our private easement as their own.
Real Estate Attorney
By private easement I assume you mean an exclusive ingress/egress easement across someone else's land. You need to put the fence back up, or put some other barricade or chain across the illegal point of entry and post it as "private property - no trespassing. " An action for intentional trespass on land (not unlawful or foreceable detainer where the intruder is occupying the land) is not codified - it is a common law cause of action, based on centuries of court cases and jurisprudence. But, attorney fees may be recovered in a trespass action if the intentional trespass interferred with livestock or farming (C.C.P. s. 1021.9)
Richard A. Rodgers, Esq.
200 N. Westlake Blvd. Ste 201
Westlake Village, CA 91362
As stated in the AVVO.COM Terms and Conditions of Use, this answer is not intended as legal advice, and no attorney-client relationship or privilige is created by this response.
Civil trespass is covered by common law rather than by statute (although you can look at California Civil Code Section 1708.8 for a specific type of trespass).
In California, the elements for a cause of action for trespass are:
(1) plaintiff’s lawful possession or right to possession, as owner or otherwise, of described property;
(2) defendant’s wrongful act of trespass on the property; and
(3) damage to plaintiff proximately caused by the trespass.
[5 Witkin, Cal. Proc. 5th (2008) Plead, § 631, p. 65; see also CACI Jury Instruction 2000.]
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.
Debt Collection Attorney
Trespass is a common law claim. The elements of a trespass claim are set forth in CACI Jury Instruction 2000.