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Guerrilla Gardening & Trespass

You may have heard of Novella Carpenter, an urban farmer with a small city lot in a particularly gritty part of Oakland, California. She wrote a great book called Farm City: the Education of an Urban Farmer, which is a lot of fun. I recommend it. She also writes a blog called Ghost Town Farm.

I’m going to use parts of Novella’s story as a case study to illuminate a couple of legal concepts as they relate to urban agriculture:

  • Common law: trespass, license, and easements.
  • Zoning law: conditional use permits.

First up: civil trespass.

Guerrilla gardening is growing on land that belongs to another, without the landowner’s permission. Usually, guerrilla gardeners choose land that has been abandoned or is otherwise unused. In many cities, especially shrinking cities, vacant lots abound. Landowners may be speculating with the lots, hoping to develop or sell them someday; in many cases, these vacant lots are owned by the city. The city of Boston, for example, owns 1,400 vacant lots, mostly in lower-income communities.

Guerrilla gardening can be an easy, low-cost way to beautify a neighborhood and to prevent negative consequences of vacant land, including illegal dumping and other crime.

Guerrilla gardening is, however, by definition, against the law: a civil trespass against the land of the landowner.

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally . . . enters land in the possession of the other, or causes a thing or a third person to do so.

Restatement (2nd) of Torts, § 158 (1965).

When Novella and her boyfriend moved into their duplex apartment on 28th Street in Oakland, the main attraction was the neighboring 4,500 square foot sunny lot. She didn’t know who it belonged to, but a neighbor told her that the lot had been used first as a parking lot, then a storage space, and, finally, a weedy empty dump. Novella got right to work and cleared the lot of trash, planting seeds that grew into a productive garden full of vegetables.

All of this entering and planting activity is a trespass to land.

Also, causing a thing to enter land belonging to another is also trespass. So if a person spies a vacant lot, filled with weeds, and she tosses a seed bomb into the lot, she has trespassed. Same with baseballs and frisbees.

So what?

Well, the owner of the land can tell Novella to get off and stay off the land.

He can also sue Novella in court for trespass. A court will easily find that Novella has committed trespass, and it might award the landowner money (called damages) to restore the lot to its former vacant status.

In this case, the lot was previously filled with trash and now is filled with vegetables; most laypeople would believe that Novella has improved the land and should not have to pay money to the landowner. However, the English/American legal system, going back to the famous jurist William Blackstone, regards land “ownership as the ‘sole and despotic dominion'” over land, “to the total exclusion of the rights of any other individual in the universe.” (Jerry L. Anderson, Comparative Perspectives on Property Rights: The Right to Exclude 53 J. Legal Ed. 1, 1 (2006)) The right of exclusive possession is essentially the most important property right. American courts will even award nominal damages ($1, for example) if the landowner can’t show any damage to the land, to make the point that trespass is not permissible under our legal system.

“A wizened Chinese man walked into the garden. I could tell he was the property owner by the way he walked past the gate and looked at the plants — quizzically, as if they were a magic trick that he couldn’t quite figure out. My heart pounding, I went down to talk to him. ‘Garden OK,’ he said after we made introductions. Then he pointed to a few nongarden items that had made it onto the lot, like some old doors and a biodiesel reactor Bill had built. ‘Only garden.’ I nodded, and that was the end of our exchange.” Farm City, p22.

How, if at all, has Novella’s legal status changed with respect to the lot? Stay tuned for the next topic: licenses and easements!

Posted on by Kristine Dunkerton

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