Is projecting a message onto the wall of a building a trespass? A nuisance?
Trespass is one of the oldest torts known to Anglo-American jurisprudence, dating as far back as twelfth-century England. But back then, even the most advanced thinkers of the day were not aware of such things as atoms, electrons, or photons ….; it would be another two centuries before Galileo proved that the earth revolved around the sun
.. It should come as no surprise, therefore, that the tort of trespass was originally limited to physical invasions of property by people or objects composed entirely of matter; as far as anyone knew, there was nothing else that existed in the universe that could invade anything. In an era lit by wax candles, and then whale-oil lamps, and then kerosene, there was not much that one could do to another’s property with light.
.. The inquiry here is whether the bundle of rights traditionally protected by the ancient tort of trespass should be read to include the right to stop the newly-developed light projection used here.
.. I agree with the view that light invasions — at least of the kind at issue here– are better suited to be addressed by the law of nuisance than the law of trespass. The fundamental conceptual difference between a trespass and a nuisance is that trespass is the right to exclude something absolutely, while nuisance is the right to exclude something that might have to be tolerated in small quantities but may become the subject of judicial relief when it becomes excessive and unreasonable even in an urban environment.
.. Thus, the tort of nuisance involves a balancing of competing interests with an eye toward ascertaining the reasonableness of the intrusion, while the tort of trespass is absolute and involves no such balancing.