Burns Philp Food, Inc. v. Cavalea Cont'l Freight, Inc.

Burns Philp Food, Inc. (Burns) (plaintiff) mistakenly paid property taxes for years on land actually owned by neighboring landowner Cavalea Cont'l Freight, Inc. (Cavalea) (defendant) due to a records error, and sued Cavalea for restitution when Cavalea refused reimbursement. Cavalea counterclaimed for trespass, alleging that a fence Burns had erected — based on a poorly done survey — actually encroached 2,000 square feet onto Cavalea's land; this counterclaim was the first notice Burns ever received of the alleged trespass, though Cavalea itself had known about the encroachment for some time before raising it, and the fence was removed the following year. After a nonjury trial, the district court awarded Burns five years of reimbursed taxes but denied Cavalea any trespass damages, reasoning that requiring notice, while not strictly traditional trespass law, was proper as a matter of "elemental justice." Both parties appealed.

Whether, under Illinois law, a trespass claim requires the claimant to first give notice to the trespasser.