However, in order to sustain a cause of action for trespass, plaintiff "must show only that he had actual or constructive possession of the real property in question at the time the alleged injury occurred." Bowman v. Hibbard, 236 S.W.2d 938, 941 (Ky. 1951). In fact, "[o]wnership or possession of the land is an evidentiary fact that must be established" to sustain a cause of action for trespass.
Trespass requires that a defendant enter — or directly cause something else to enter — the plaintiff's property. See, e.g., Bowman v. Hibbard, 236 S.W.2d 938, 939 (Ky. 1951); Hughett v. Caldwell County, 230 S.W.2d 92, 94 (Ky. 1950). Nuisance requires that a defendant unreasonably use its own property. K.R.S. § 411.520.
Trespass requires that a defendant enter — or directly cause something else to enter — the plaintiff's property. See, e.g., Bowman v. Hibbard, 236 S.W.2d 938, 939 (Ky.Ct.App. 1951); Hughett v. Caldwell County, 230 S.W.2d 92, 94 (Ky.Ct.App. 1950); 13 David J. Leibson, Kentucky Practice: Tort Law, § 6.1 (West 2005). In this case, the plaintiffs allege that MSD issued a construction permit to Anchorage, and that Anchorage's construction caused the water to accumulate on their property.
Id. at § 31. See id. at § 29 ("To maintain an action of trespass, the plaintiff must have had actual or constructive possession of the real property in question at the time when the alleged injury occurred.") (citing Bowman v. Hibbard , 314 Ky. 688, 236 S.W.2d 938 (1951) ). Where the right to sole possession is premised on a claim to fee title, a trespass plaintiff must actually hold title.
See Rosenthal v. City of CrystalLake, 171 Ill.App.3d 428, 435-36 (1988) ("If a trespass is continuing, any person in possession of the land at any time during its continuance may maintain an action for trespass."); see also Neissv. Foster, 64 Pa. 495, 499 (1870) ("[I]f the trespass was complete while *** plaintiff, was the owner of the land, the right of action immediately accrued to him, and was not divested by his subsequent sale to another; nor did it pass to that other by the conveyance."); Bowman v. Hibbard, 314 Ky. 688, 692 (1951) ("*** the fact that plaintiff transfers the title to the property after the trespass does not divest him of his right to recover damages if the injury was inflicted during the time of his control of the property."); Otis v. Jones, 21 Wend. 394, 397 (N.Y. Sup. Ct. 1839)
" In the case of Bowman v. Hibbard, 314 Ky. 688, 236 S.W.2d 938, 941, we stated the rule as follows: " '* * * [T]he general rule seems to be that in order for a person to maintain an action of trespass, he must show only that he had actual or constructive possession of the real property in question at the time the alleged injury occurred."
This appeal marks the second appearance of the present case before this Court. The first appeal is reported in Bowman v. Hibbard, 314 Ky. 688, 236 S.W.2d 938, 941. The facts are stated in that opinion and we shall not repeat them here.