Common law; Cal. Civ. Code § 3346; Cal. Code Civ. Proc. § 733; CACI No. 2000
Trespass to land: no damage required — unless you cut down a tree, and then it triples
A claim in California superior courts · Last verified August 26, 2026
Trespass protects the right to exclude, which is why it is the rare tort that needs no proof of harm. An unauthorised entry is complete on entry, and a plaintiff who suffered nothing measurable still recovers nominal damages and can get an injunction.
Then there is the tree provision. California doubles — and may treble — the damages for wrongfully injuring or removing someone else's timber, trees, or underwood. The doubling is mandatory, not discretionary, and it turns a modest landscaping dispute into a serious claim.
What the claim is
Someone intentionally entered your land, or caused something to enter it, without permission.
The recurring situations: a neighbour's fence, wall, or building encroaching over the line; a contractor grading or excavating beyond the boundary; tree removal or trimming across a property line; water, debris, or fill directed onto the property; a former tenant or guest refusing to leave; repeated crossing over land.
Trespass reaches only the tangible. After Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342 and San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, an intangible intrusion — noise, light, electromagnetic fields, odour — is not a trespass unless it causes physical damage to the land. Those interferences belong in nuisance.
Where the right comes from
Common law, with statutory damages provisions at Civil Code § 3346 and CCP § 733.
What a plaintiff has to prove — CACI No. 2000
- The plaintiff owned, leased, occupied, or controlled the property.
- The defendant intentionally entered the property, or caused another person or thing to enter it.
- The plaintiff did not give permission, or the defendant exceeded the permission given.
- The plaintiff was harmed — or, for nominal damages, was not.
- The defendant's conduct was a substantial factor in causing any harm.
"Intentionally" means intending the entry, not intending to trespass. A defendant who entered believing in good faith that the land was theirs, or who was mistaken about the boundary, has still trespassed. Mistake is not a defense to liability — it goes to damages, and it is the difference between double and treble damages on the tree provision.
Damage is not an element. Nominal damages are available for the bare invasion of the right.
Exceeding permission is a trespass. A contractor allowed onto the property to do one thing who does another, or who stays after the permission ends, becomes a trespasser.
How long you have to file
Three years, under CCP § 338(b), for trespass upon or injury to real property.
The continuing/permanent distinction applies exactly as it does in nuisance, and it is the same consequential question:
A permanent trespass — a structure encroaching over the line, built to stay — accrues once, and three years later the claim is barred. The practical effect is severe: the encroachment becomes permanent in fact, and the owner's remedy is gone.
A continuing trespass — one that can be removed or abated — gives rise to a new cause of action each day, with recovery limited to the three years preceding suit.
The test is abatability, and where it is in doubt the plaintiff may elect, on the same reasoning as nuisance. CACI No. 2030 covers the limitations defense.
The discovery rule applies to a subsurface or concealed trespass the owner had no way to detect.
What has to happen before you file
Nothing.
Unless a public entity is a defendant — then the Government Claims Act's six-month presentation requirement applies.
There is no notice requirement, though for an encroachment a written demand and a survey are the practical first steps, and a defendant's refusal after notice bears directly on whether the conduct was wilful for the tree multiplier.
Who can be sued — and who can sue
Anyone who entered, or who caused a person or object to enter. A contractor and the property owner who directed the work are both reachable.
To sue you need possession or the right to possession. An owner out of possession sues for injury to the reversion; a tenant in possession sues for the trespass itself.
An adjoining owner whose improvement encroaches is liable — but if the encroachment was innocent, minor, and removing it would cost the defendant far more than it benefits the plaintiff, a court may refuse an injunction and award damages instead, under the relative hardship doctrine. That is the main reason an encroachment claim does not always end with the wall coming down.
Common defenses
Consent, including a licence, an easement, or permission implied from a course of dealing.
A legal right of entry — an easement, a public right of way, a statutory right, or entry by law enforcement under lawful authority.
Necessity, which is narrow.
The relative hardship doctrine, on an innocent encroachment.
A prescriptive easement, where the entry has been open, notorious, hostile, and continuous for five years, which converts a trespass into a right.
The plaintiff has no possessory interest.
The limitations period, with the permanent/continuing characterisation contested.
No physical damage, on an intangible intrusion — the Hamidi and San Diego Gas & Electric defense, which recharacterises the claim as nuisance.
What the claim pays
Nominal damages for the bare invasion, with no proof of harm.
Diminution in value or cost of repair, generally the lesser — though California allows the cost of restoration where there is a personal reason for restoring the property, even if it exceeds the diminution in value.
Discomfort and annoyance damages, available to an occupant.
Loss of use, and disgorgement of the benefit the trespasser obtained.
The tree multiplier — Civil Code § 3346 and CCP § 733
This provision is the reason a tree case is not a small case, and the multipliers turn on the defendant's state of mind:
- Wilful and malicious injury to timber, trees, or underwood: the court must at least double the actual damages, and may treble them. The trebling is discretionary; the doubling is not.
- Casual, involuntary, or committed under a good faith belief that the defendant had authority — double damages are mandatory, with no trebling.
- Acting under a legal right or authority: actual damages only.
The floor is double damages even for an honest mistake, which is the feature people find hardest to believe and which makes boundary-line tree removal dangerous.
And the multiplier reaches more than the cost of the tree. In Fulle v. Kanani (2017) 7 Cal.App.5th 1305, the Court of Appeal held that annoyance and discomfort damages flowing from the tortious injury to trees are subject to the multiplier too — so the emotional component of losing mature trees is doubled or trebled along with the replacement cost. Salazar v. Matejcek (2016) 245 Cal.App.4th 634 sets out the measures of timber damage.
Punitive damages under Civil Code § 3294 on clear and convincing proof — though a plaintiff generally cannot recover both the § 3346 multiplier and punitive damages for the same conduct.
Injunctive relief and ejectment to remove the trespass.
No fee-shifting.
Jury trial: yes on damages; injunctive relief is equitable.
What people get wrong
"Nothing was damaged, so there's no claim." Trespass is complete on entry. Nominal damages and an injunction are available without any harm.
"I thought it was my land." Mistake is not a defense to liability. It only reduces the tree multiplier from potentially treble to a mandatory double.
"It's just a tree." Double damages are mandatory even for an honest mistake, and after Fulle the multiplier reaches annoyance and discomfort damages as well.
"Their noise and lights are trespassing on my property." Intangible intrusions are nuisance, not trespass, unless they physically damage the land.
"The fence has been there twenty years, so I'll just sue now." A permanent encroachment accrues once. Three years later the claim is gone and the encroachment stays.
"I gave them permission to come, so they can do anything." Exceeding the scope of permission is a trespass.
"They'll have to tear it down." Not necessarily. The relative hardship doctrine can leave an innocent minor encroachment in place with damages instead.
Where it came from
Trespass to land is among the oldest forms of action, and its no-damage-required rule is a survival of what it was originally for: not compensating loss, but vindicating possession. The action existed to settle who had the right to be on the land, and a rule requiring proof of harm would have defeated that purpose entirely.
California's distinctive contribution is the tree statute, and its history explains its severity. Enacted in the era of large-scale timber cutting, § 3346 was written to make unauthorised harvesting uneconomic — the multiplier had to exceed the value of the timber taken, or the statute would function as a licence fee.
The mandatory floor for innocent mistakes is the deliberate part. The Legislature declined to let a good faith belief reduce the award to actual damages, because a timber operator who guessed wrong about a boundary would otherwise face no consequence for failing to check.
Its modern application is almost entirely residential, and Fulle (2017) extended the multiplier to the annoyance and discomfort of losing trees — a measure that has little to do with timber value and a great deal to do with what a mature tree means to a homeowner.
Common questions
Do I have to prove damage to sue for trespass?
No. Trespass is complete on entry and nominal damages are available without any proof of harm. That distinguishes it from nuisance, which requires substantial and unreasonable interference.
My neighbour cut down my tree. What is it worth?
Potentially far more than the tree. Civil Code § 3346 requires the court to double the damages even where the cutting was a good faith mistake, and permits trebling where it was wilful and malicious. After Fulle v. Kanani, the multiplier applies to annoyance and discomfort damages as well.
They thought the land was theirs. Does that matter?
Not to liability — mistake is no defense. It matters to the tree multiplier, reducing the exposure from potentially treble damages to a mandatory double.
Is noise or light from next door a trespass?
No. Intangible intrusions are addressed by nuisance unless they cause physical damage to the land.
How long do I have?
Three years. But if the trespass is permanent — an encroaching structure — the clock runs from when it was built, and after three years the encroachment can become effectively permanent.
Will the court make them remove the encroachment?
Not always. Where the encroachment was innocent and minor and removal would cost far more than it benefits you, a court may award damages instead under the relative hardship doctrine.