C. Elements Defined

C. Elements Defined

1. Legal Possession

To maintain a trespass action, there must be possession and a right to it.⁷ One in peaceable possession, though lacking title,⁸ is entitled to remain in possession until ousted by the true owner⁹ and need only show prior peaceable possession against the defendant.¹⁰ An adverse possessor may thus bring a trespass action against anyone but the true owner.¹¹

The owner of a servient estate can commit trespass by intentionally destroying an easement without the consent of the easement holder.¹²

2. Voluntary Entry on the Property by the Defendant

An action in trespass will lie if the defendant intentionally entered the property.¹³ The degree of force, means of entry or extent of damage are not determinative. "[I]f one without license from the person in possession of land walks upon it, or casts a twig upon it, or pours a bucket of water upon it, he commits trespass ...".¹⁴ Intent is proved by showing the defendant acted voluntarily and knew or should have known the result would follow from his act,¹⁵ or unreasonably remained after permission has ended.¹⁶ Nonfeasance or failure to act will not support a claim for trespass.¹⁷

"South Carolina adheres to the traditional rule requiring an invasion by a physical, tangible thing for a trespass to exist, and accordingly ... odors cannot give rise to a trespass claim.¹⁸

3. The Entry Was Without the Plaintiff's Permission

Lack of permission is an essential element of a cause of action for trespass. Trespass requires that the defendant entered without permission or unreasonably remained after permission ended.¹⁹

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Notes:

^[7] Lyles v. Fellers, 138 S.C. 31, 136 S.E. 13 (1926).

^[8] Gunter's Island Hunting Club v. Hucks, 282 S.C. 124, 317 S.E.2d 470 (Ct. App. 1984) (action for trespass may be based on possession and not necessarily legal title); Little v. Little, 223 S.C. 332, 75 S.E.2d 871 (1953). See also Hawkins v. City of Greenville, 358 S.C. 280, 594 S.E.2d 557 (Ct. App. 2004) (gist of trespass is injury to possession, and generally either actual or constructive possession is sufficient to maintain action).

^[9] Watson v. Motley, 121 S.C. 482, 114 S.E. 412 (1922).

^[10] Lyles v. Fellers, 138 S.C. 31, 136 S.E. 13 (1926) (plaintiff's possession is sufficient to maintain trespass against a wrongdoer but not against rightful owner); Beaufort Land & Investment Co. v. New River Lumber Co., 86 S.C. 358, 68 S.E. 637 (1910); Knox v. Bogan, 322 S.C. 64, 472 S.E.2d 43, 45 (Ct. App...