Can property owners be liable for trespass when contractors place dirt on neighboring property? Carter v. Done Explained

In Carter v. Done, the Utah Court of Appeals addressed whether property owners can be held liable for trespass when their independent contractors place dirt on neighboring property without authorization, and the property owners subsequently use that dirt as lateral support for their own construction.

Background and Facts

The Carters and Dones owned adjacent residential lots in North Salt Lake. Both parties began home construction in 2003, with both lots requiring fill dirt due to steep slopes. The Carters built a concrete retaining wall four feet inside their property line. When the Dones’ contractor, Rock Hard Construction, began grading work, fill dirt was pushed against the Carters’ retaining wall, burying it and covering a four-foot strip of the Carters’ property. The dirt against the back of the Carters’ house was later removed through a temporary injunction, but the dirt against the retaining wall remained. The Dones completed construction using this trespassing dirt as lateral support.

Key Legal Issues

The case presented two main issues: (1) whether the Dones could be liable for trespass when they did not personally place the dirt or direct its placement, and (2) whether the district court properly applied the balancing of equities doctrine to award monetary damages instead of the requested injunctive relief.

Court’s Analysis and Holding

The court held that while the Dones might not be liable for the initial placement of dirt by their independent contractors, they committed a separate trespass by causing the dirt to remain in place. Under section 158 of the Restatement (Second) of Torts, trespass liability extends to causing a thing “to remain” on another’s property. By using the trespassing dirt as lateral support for their own fill dirt and construction, the Dones effectively pinned it in place, constituting a continuing trespass. The court also affirmed the district court’s application of the balancing of equities test, which allows courts to award damages instead of injunctive relief when removal costs would be disproportionate to the harm caused.

Practice Implications

This decision clarifies that property owners can face trespass liability not only for initially placing materials on neighboring property, but also for causing those materials to remain through their subsequent actions. Practitioners should advise clients that using trespassing materials as support for their own improvements can create independent liability. When seeking injunctive relief for property encroachment, attorneys should be prepared to present evidence supporting monetary damages, as courts may apply the balancing of equities doctrine and award compensation instead of ordering removal, particularly when removal costs would be disproportionate to the actual harm.