# Schronk v. Gilliam > Court of Appeals of Texas · March 26, 1964 · 380 S.W.2d 743 URL: https://www.frixlaw.com/law-library/cases/9770658 ## Case - **Full name:** Edward SCHRONK Et Al., Appellants, v. Homer GILLIAM Et Al., Appellees - **Court:** Court of Appeals of Texas - **Decided:** March 26, 1964 - **Citations:** 380 S.W.2d 743; 1964 Tex. App. LEXIS 2638 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Wilson - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770658 ## Opinion text On Motion for Rehearing Appellants now contend that in the absence of a finding that they “entered the air space above the land of the appellees either wilfully or intentionally” a judgment based on trespass is unauthorized. We did not rest liability on the Restatement principle that aeronautics is an extra-hazardous activity. We rested it upon the undisputed fact of an unprivileged entry upon land in exclusive possession, recognizing that in the absence of proof of altitude it could not be said that mere entry across the vertical plane, or boundary of appellees’ land by the aircraft alone was an intrusion upon exclusive dominion. The circumstances in the record make uncontroverted the fact that it was intended the aircraft be flown in the atmosphere over appellees’ lands. The evidence shows it was not intended, however, that the foreign substance should be dropped on their lands. This, we assume, is the basis of appellants’ stated contention. We have not considered it lightly. It raises a question as to whether there may be an actionable trespass *746 where there is an unintentional and non-negligent entry under the Restatement view. The intention involved in appellants’ contention, however, relates not to a purpose to cause damage, hut to make the entry. Prosser, Torts, 78, says of appellants’ contention : “The most significant recent development is the position taken by Restatement of Torts which finds liability for trespass only in the case of intentional intrusions or negligence or some ‘extrahazardous activity on the part of defendant.’ It is probable that this position will be adopted in time by the courts.” In the second edition, p. 75, Prosser traces changes in trespass concepts, and says, “The most important of the trespass rules to survive was that which imposed liability for invasions of property which were neither intended nor negligent.” See Harper and James, Torts (1956) Sec. 1.16, p. 46. The Restatement position is now itself in a restless state. See Tentative Re-draft No. 10, Sec. 520a, April 20, 1964. Texas has not yet adopted the original Restatement view. In Mountain States Tel. & Tel. Co. v. Vowell Const. Co., 161 Tex. 432 , 341 S.W.2d 148 , the excavating contractor intended to enter the land above which plaintiff’s cable was lawfully buried in the driveway under a possessory right which excluded the contractor. The contractor “knew that a cable had been laid” in the driveway, but apparently did not know its depth. An engineer staked the driveway to require a cut of 2.4 feet, but the contractor cut the cable upon reaching a preliminary depth of only 2.2 feet. The Court of Civil Appeals held, 335 S.W.2d 804 , that since plaintiff had waived any claim of negligence, recovery could not be based on trespass because the plaintiff “did not plead, prove, or submit issues as to willful or intentional trespass”, and that because of failure to “plead and prove a willful or intentional trespass” the judgment was without support. The Supreme Court pointed'to that language, saying the intermediate court seemed “to have taken the position that for the severing act to constitute a trespass Vowell must have actually intended to cut the cable.” After stating the “trespass” of common law forms of action based on willful and deliberate acts or negligence was not the “trespass” involved, the Supreme Court held that “[t]he important thing is that a property right was violated” : the molesting or severing of the cable, “which gave rise to a cause of action regardless of negligence”. The present case is undistinguishable on principle. In neither case did the defendant willfully, deliberately or intentionally invade a property right in the exclusive dominion and possession of the plaintiff. In neither case did the defendant actually intend to inflict the damage. In one case the “scraper was deliberately and intentionally used” in making a cut not intended to invade the property right of plaintiff ; in the other an aircraft was intentionally and deliberately used in traversing airspace not intended to violate appellees’ surface property rights. “A trespasser on land” has been defined “as one who, not having title thereto, without consent of the true owner [thereof], makes entry thereon.” It is said also that “every unauthorized entry upon land of another is a trespass” and “the intent or motive prompting the trespass is immaterial”. McDaniel Bros. v. Wilson, Tex.Civ.App., 70 S.W.2d 618, 621 , writ ref. See 21 Tex.L.Rev. 78. 1 Appellants’ motion for rehearing is overruled. . It may be that a more accurate and consistent characterization of the basis of liability would be that appellees failed to discharge a duty imposed on one who by flying across land makes an extraordinary use thereof, as in the Pioneer Natural Gas Co. v. K. & M. Paving Co., Tex.Sup., 374 S.W.2d 214, 218-219 ; or that in the exercise of a non-consensual privilege the actor has conducted the flight in an unreasonable manner and interfered unreasonably with the possessor’s enjoyment of the surface, as in existing Restatement, Sec. 194. See Tentative Redraft No. 10, April 20, 1964. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770658. Public record. Not legal advice.