Agenda - 04-08-2014 - 2 - Laserfiche WebLink

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33 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 visitors that some greater degree of implied consent is required to enter the property than that which exists from simply having a driveway or a walkway to the front door. An unannounced visitor who encounters a threatening barking dog should perhaps reasonably become aware that, absent a clear invitation, the land occupier has suggested by implication that he does not consent to an entry upon the land. (iii) Express Consent Situations of express consent have the potential to be relatively straightforward for purposes of trespass analysis. The email correspondence offers the hypothetical of a person entering a fenced portion of his neighbor's property to borrow something he has permission to borrow. Most likely, this entry is not a trespass because it was explicitly authorized. While situations of express consent often present factual circumstances where it is relatively easy to identify the moment of manifestation of consent as well as the scope of consent, they are not altogether without complication. There are cases, for example, which hold that a defendant is insulated from trespass liability by way of the land occupier's express consent to enter even where the consent is obtained by misrepresentation. In Keyzer v. Amerlink, Ltd., 173 N.C. App. 284, 290 (2005) affd, 360 N.C. 397 (2006), the Court of Appeals found that defendants who falsely represented themselves to an attorney as prospective clients, specifically denied working for a certain party, and secretly taped interactions within the attorney's law office could not be held liable for trespass because plaintiff, though pursuant to deception, consented to their entry. The court noted its agreement with the Fourth Circuit that "`consent gained by misrepresentation is sometimes sufficient' as a defense to a claim of trespass."Id. (citation omitted). But see Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 519 (4th Cir. 1999) (although consent based on misrepresentation was initially sufficient to defeat trespass claim, the consent was nullified by defendants' subsequent tortiuous conduct). Another situation where express consent can be problematic is where one receives express consent to enter onto land from a person who has no authority to grant such consent, but the would-be trespasser has no reason to know the grantor lacks authority.8 This situation occurred in Sligo Furnace Co. v. Hobart-Lee Tie Co., 134 S.W. 585 (Mo. 1911), where an individual granted to defendants the timber rights to a piece of land which the grantor did not own. In the resulting suit for damages —where a designation of defendants as willful trespassers would substantially affect the amount of recoverable damages —the appellate court agreed with the trial court's finding "that the agents of defendant were not willful trespassers, but had cut the timber s It is worth briefly noting that a related issue in situations of express consent occurs where a person other than the owner or occupier of land has the permission to grant consent to others to enter the land,but may exceed such permission by authorizing certain objectionable actions. See e.g.,Miller v. Brooks, 123 N.C.App. 20,28, (1996) ("Defendants assert that, as plaintiffs wife, defendant Miller was authorized to enter the house and could give others the right. . . . Even if she had permission to enter the house and to authorize others to do so, there is also evidence to create a genuine issue of material fact as to whether defendants'entries exceeded the scope of any permission given.") 11