Klein v. Bassil

For Publication
           IN THE SUPREME COURT OF THE VIRGIN ISLANDS

 JOHN KLEIN,                                         ) S. Ct. Civ. No. 2021-0044
      Appellant/Defendant                            ) Re: Super. Ct. Civ. No. 148/2021 (STT)
                                                     )
 v.                                                  )
                                                     )
 MADELINE BASSIL,                                    )
     Appellee/Plaintiff.                             )
                                                     )
                                                     )

                      On Appeal from the Superior Court of the Virgin Islands
                                 Division of St. Thomas-St. John
                           Superior Court Judge: Hon. Sigrid M. Tejo

                                     Argued: November 9, 2022
                                     Filed: December 18, 2023

                                        Cite as: 

BEFORE:       RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice, and
              IVE ARLINGTON SWAN, Associate Justice.

APPEARANCES:

Jason E. Ohana, Esq. (Argued)
Patrick D. Blake, Esq.
Willcox & Savage, P.C.
Norfolk, Virginia
       Attorneys for Appellant,

Matthew J. Duensing, Esq. (Argued)
Joseph D. Sauerwein, Esq.
Law Offices of Duensing & Casner
St. Thomas, U.S.V.I.
       Attorneys for Appellee.

                             OPINION OF THE COURT
HODGE, Chief Justice.

¶1     Appellant John Klein appeals from the Superior Court’s August 16, 2021 opinion and
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order, which granted Madeline Bassil’s motion for a preliminary injunction, enjoining Klein and

others at his direction from trespassing on any portion of her parcel of property. For the reasons

that follow, we affirm.

                                       I.      BACKGROUND

¶2        In 2002, Bassil and her former spouse, Terry Anderson, purchased Parcel No. 2D-12 Estate

Nazareth, St. Thomas, U.S. Virgin Islands. After the couple’s divorce in 2006, Bassil became the

sole owner of the parcel. In 2004, Klein purchased Parcel No. 2D-11, located directly to the south

of Bassil’s parcel.     When he was constructing a building on his Parcel No. 2D-11, Klein

encroached on Parcel No. 2D-12. In 2008, to cure the encroachment he purchased a piece of Parcel

No. 2D-12 from Bassil and her parcel was thereafter renumbered as Parcel No. 2D-12 Remainder.1

Before selling the encroached portion of her property to Klein, Bassil requested that he have a land

survey done to determine the exact boundaries of the parties’ respective properties. In 2014 and

2015, Klein made offers to purchase Parcel No. 2D-12 Remainder, but the offers were rejected by

Bassil.

¶3        Bassil first became aware of paths crossing over her parcel in January 2021, when she was

informed by her real estate agent that “bush, vegetation, trails and steps had been cut through and

across her Parcel from Parcel No. 2D-11 and over Parcel No. 2D-13 Estate Nazareth to reach the


1
  In 2008, there was a dispute over Klein’s driveway encroaching on Bassil’s parcel: Klein claimed
that as he was excavating for the construction of his house dirt fell onto Bassil’s property; Bassil
claimed that Klein extended his driveway onto her property. Bassil asked Klein to have a land
survey done on Parcel No. 2D-12, which found that Klein’s driveway did in fact extend onto
Bassil’s parcel. In email correspondence between Bassil and Klein, the parties discussed Klein
purchasing the disputed sliver of land from Bassil. During this exchange, Klein asserted that he
owned the sliver of land by adverse possession. This claim was never litigated and Bassil agreed
to sell the piece of land, consisting of 1,030 square feet, to Klein for $20,000, which was
consummated by quitclaim deed on November 20, 2008.
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Secret Harbor beach.” Bassil commissioned a land survey of her parcel, which confirmed the

existence of trails traversing her parcel “apparently opened and utilized by the owner and

occupants of Parcel No. 2D-11.”2 Around this same time, Bassil became aware that Klein had

begun renting out rooms in his residence on Parcel No. 2D-11 and that his rental advertisements

highlighted “a private path to a gorgeous white sand beach.” On February 15, 2021, Bassil served

Klein with a cease-and-desist letter requesting that he cease and desist all activity on Parcel No.

2D-12 Remainder, advising Klein that he did not have her permission or consent to do anything

on the parcel.3 Klein, in response, asserted that he had acquired rights to a portion of Parcel No.

2D-12 Remainder through adverse possession and/or a prescriptive easement.

¶4      Bassil filed the complaint initiating this action on April 20, 2021,4 in which she sought a

temporary restraining order, injunctive relief, trespass, declaratory judgment, quiet title, and

damages for slander of title and intentional infliction of emotional distress. On April 26, 2021,

Bassil filed an emergency motion for a temporary restraining order and a preliminary injunction.

The Superior Court denied Bassil’s motion for a temporary restraining order and instead scheduled

and conducted an evidentiary hearing on her motion for preliminary injunction on July 27 and 28,



2
  At the preliminary injunction hearing, Ryan Wisehart, the owner of the land survey company that
performed the survey, testified that this information came from “the collection of data on the
property and the process of preparing the survey, as well as the observations or hand-in-hand with
the observations of the survey crew chief who did the fieldwork.”
3
  In Bassil’s complaint, she asserted that Klein’s counsel responded that Klein had acquired rights
to a portion of Parcel No. 2D-12 Remainder through adverse possession and/or a prescriptive
easement. The response letter from Klein’s counsel was not submitted to the Superior Court;
however, in Klein’s answer, he alleged that he had acquired rights to a portion of Parcel No. 2D-
12 through adverse possession and/or a prescriptive easement.
4
  The Superior Court’s August 16, 2021 order incorrectly noted that Bassil filed the initiating
complaint on April 20, 2020. We have noted the correct date as April 20, 2021.
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2021. The Superior Court decided to not consolidate the preliminary injunction hearing with a

trial on the merits as permitted at the Superior Court’s discretion by Rule 65 of the Virgin Islands

Rules of Civil Procedure. See V.I. R. CIV. P. 65(a)(2).

¶5      At the preliminary injunction hearing, Bassil testified that there were no paths or trails over

Parcel No. 2D-12 when she and Anderson inspected it before purchasing the parcel in 2002. She

testified further that she had visited her parcel in St. Thomas several times over the years,

specifically mentioning 2012 and 2015, and stating that she had never observed any paths or trails

on or across the property. Anderson testified that from 2002 to 2009 he never observed any

established trails, and that the last time he visited the parcel in 2009, he had to “pick” his way

down through the bushes, “the same way [he] always did,” to access the beach. The Superior

Court also heard testimony from three local realtors, all of whom testified to never having observed

any established trails over Bassil’s parcel looking from the vantage points of the beach, the water,

and the neighboring parcel to the north, until they were first discovered in late 2020 or early 2021.

Ryan Wisehart, the owner of the land survey company that conducted surveys of Parcel No. 2D-

12 in 2008 and 2021, testified that there was no reference to any trail on the parcel in the 2008

survey, but that there was a “meandering path” found by the 2021 survey. Bassil also submitted

aerial photographs from 2015, Google Earth images5 from 2019, and drone photographs from

2021, which did not show any trails on Parcel No. 2D-12 Remainder in 2015 but clearly showed

trails across the property in 2019 and 2021.



5
  Google Earth is an online mapping service which allows users to call up detailed satellite images
of most locations on Earth, accessing satellite and aerial imagery as well as other geographic data
to represent the Earth as a three-dimensional globe. Google Earth, ENCYCLOPAEDIA BRITANNICA,
https://www.britannica.com/topic/Google-Earth (last visited Apr. 11, 2023).
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¶6        Klein claimed that he has acquired rights to the use of the trails located on Parcel No. 2D-

12 Remainder through adverse possession and/or prescriptive easement. Klein alleged that in 2004

when he purchased Parcel No. 2D-11, a single trail started at his parcel and traversed through

Bassil’s parcel to Secret Harbor Beach. Klein further alleged that in 2005,6 he constructed an

additional trail that started at a different part of his parcel, which met up with and joined the

original trail, and ended at the beach. Klein testified to using the original trail over Parcel No. 2D-

12 as early as 2002, and then subsequently using the trails all the time after purchasing his parcel

of property. Klein elicited witness testimony at the preliminary injunction hearing from six close

friends, who testified that they had visited Klein and accompanied him on a “secret” path across

Parcel No. 2D-12 on multiple occasions over the years, beginning in 2003 with the last visit in

2019. Klein testified that since 2004, he has maintained and improved the paths, cleared brush,

kept the ground clear of debris, removed termite nests, and installed a “no trespassing” sign. Klein

also testified that he encouraged his rental guests to use the trails. Klein claimed that the granting

of a preliminary injunction would harm his rental business, his reputation, and his health because

he would not be able to access the beach safely in order to swim for his saltwater lung therapy,

due to the poor condition of the road to the public beach access.

¶7        On August 16, 2021, the Superior Court issued its opinion and order granting Bassil’s

motion for a preliminary injunction. The Superior Court found that Bassil had demonstrated a

reasonable likelihood of success on the merits of her trespass claim, that she was suffering and

would continue to suffer irreparable harm absent injunctive relief, that Klein would not suffer

irreparable harm, and that the public interest weighed in favor of granting the preliminary



6
    Bassil claimed that Klein did not complete the construction of his home until 2008.
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injunction. Klein timely filed his notice of appeal on September 16, 2021. See 4 V.I.C. § 33(d)(5).

                                       II.     DISCUSSION

     A. Jurisdiction and Standard of Review

¶8      The Supreme Court has jurisdiction over “[i]nterlocutory orders of the Superior Court of

the Virgin Islands . . . granting, continuing, modifying, refusing or dissolving injunctions,” 4 V.I.C.

§ 33(b)(1), and we may review the Superior Court’s decision to grant the preliminary injunction

“even though the underlying action remains pending before the Superior Court.” Marco St. Croix,

Inc. v. V.I. Hous. Auth., 

 (V.I. 2015). Because Klein filed his notice of appeal of

the Superior Court’s August 16, 2021 order granting the preliminary injunction within thirty days,

this Court has jurisdiction over this appeal. 4 V.I.C. § 33(d)(5).

¶9      This Court reviews the Superior Court’s overall decision to grant or deny an injunction for

abuse of discretion. Petrus v. Queen Charlotte Hotel Corp., 

 (V.I. 2012). The

Superior Court abuses its discretion when its decision “rests upon a clearly erroneous finding of

fact, an errant conclusion of law or an improper application of law to fact.” Stevens v. People, 

 (V.I. 2011) (quoting Schneider v. Fried, 

 (3d Cir. 2003)). We

review the Superior Court’s factual determinations regarding the “likelihood of irreparable harm,

harm to the nonmoving party, and whether the injunction is in the public interest” only for clear

error. Yusuf v. Hamed, 

 (V.I. 2013). The clear error standard is highly deferential

to the Superior Court’s findings; thus this Court will “only reverse a factual determination as being

clearly erroneous if it is completely devoid of minimum evidentiary support or bears no rational

relationship to the supportive evidentiary data.” In re Estate of Small, 

 (V.I. 2012).

As long as “a rational person could agree with the assessment of the [Superior Court],” we will

not overturn its factual conclusions. Moore v. Walters, 

 (V.I. 2014).
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    B. Preliminary Injunction

¶ 10    A preliminary injunction is “an extraordinary and drastic remedy,” never awarded as of

right, but only “upon a clear showing that the plaintiff is entitled to such relief.” Yusuf, 

 (internal citations omitted). It is well established in the Virgin Islands that when determining

whether to grant a preliminary injunction, the Superior Court must consider four factors:

        (1) whether the movant has shown a reasonable probability of success on the merits;
        (2) whether the movant will be irreparably injured by denial of the relief; (3)
        whether granting preliminary relief will result in even greater harm to the
        nonmoving party; and (4) whether granting the preliminary relief will be in the
        public interest.

Petrus, 

. The moving party bears the burden of making a showing on all four factors.

Appleyard v. Governor Juan F. Luis Hosp. & Med. Ctr., 

 (V.I. 2014). This Court

has adopted a modified sliding-scale test, which requires the Superior Court to “make findings on

each of the four factors and determine whether – when the factors are considered together and

weighed against one another – the moving party has made ‘a clear showing that [it] is entitled to

[injunctive] relief.’” 3RC & Co. v. Boynes Trucking Sys., 

 (V.I. 2015) (quoting

Yusuf, 

). To obtain a preliminary injunction, the moving party must demonstrate

primarily that irreparable harm is likely without an injunction. Id. at 554 (collecting cases).

Without some showing of irreparable harm, injunctive relief is inappropriate. Id. at 561. However,

risk of irreparable harm alone is not enough; the moving party must also make “at least some

showing that [it] is likely to succeed on the merits.” Id. at 554-55 (citing Marco St. Croix, Inc., 

 n.2 (emphasis in original) (finding that the movant’s possibility of success was

essentially zero, and thus no showing of potential irreparable harm would justify a preliminary

injunction)). Accordingly, where there is a strong showing of success on the merits, injunctive

relief may still be appropriate even where the moving party’s showing of irreparable harm is
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weaker, so long as the moving party has made some showing on all four injunction factors. 3RC

& Co., 

. With this standard in mind, we review the Superior Court’s findings on

each factor in deciding to grant Bassil injunctive relief.

                            1.   Reasonable probability of success on the merits

¶ 11    To demonstrate a reasonable probability of success on the merits, the moving party must

show that it has “a reasonable chance, or probability, of winning.” Yusuf, 

. The

party moving for a preliminary injunction does not have to show that it will “actually prevail on

the merits at trial.” 

 (noting that the moving party was not even required to show that his success

was more likely than not). In order to satisfy her burden as the moving party, Bassil was required

to “introduce evidence supporting each element” of the underlying trespass cause of action. 

(citing Punnett v. Carter, 

 (3d Cir. 1980)).

¶ 12    The Superior Court concluded that Bassil established a reasonable probability of success

on her trespass claim. In doing so, the Superior Court acknowledged that a split of authority exists

amongst the judges of the Superior Court with respect to the elements of a civil trespass cause of

action. In one case, the court performed a Banks analysis, see Banks v. Int’l Rental & Leasing

Corp., 

 (V.I. 2011), and concluded that:

        A defendant will be liable to a plaintiff for trespass if the defendant: (1)
        intentionally enters onto the plaintiff’s property without the plaintiff’s permission;
        (2) remains on plaintiff’s property without plaintiffs permission; (3) places
        something on the plaintiff’s property without the plaintiff’s permission; or (4)
        removes something from the plaintiff’s property without the plaintiff’s permission.

Anduze v. Leader, 

 (V.I. Super. Ct. 2015). However, in another case assigned

to a different judge, the court reached a different conclusion after performing its own Banks

analysis and elected to adopt the elements of intentional trespass as set forth in section 158 of the
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Restatement (Second) of Torts:

        One is subject to liability for another for trespass, irrespective of whether he thereby
        causes harm to any legally protected interest of the other, if he intentionally (a)
        enters land in possession of the other, or causes a thing or third person to do so or,
        (b) remains on the land, or (c) fails to remove from the land a thing which he is
        under a duty to remove.

Alleyne v. Diageo USVI, Inc., 

 (V.I. Super. Ct. 2015).

¶ 13    Although the Superior Court acknowledged the existence of this split,7 in this case it neither

adopted the Banks analysis performed by either of these courts, nor conducted its own Banks

analysis.    Instead, the Superior Court analyzed Bassil’s reasonable probability of success

exclusively on the strength of her evidence and the weakness of Klein’s adverse possession

defense:

        In this case, Bassil has demonstrated a reasonable probability of success on her
        claim of trespass. Bassil alleges that Klein has intentionally trespassed on her
        property by entering her property without her permission and by cutting down and
        injuring trees, brush, and shrubbery. By cutting the brush to create a trail, Bassil
        asserts trespass that entitles her to treble damages pursuant to § 336 of title 28 of
        the Virgin Islands Code. Evidence presented by both parties supports Bassil's claim
        of trespass. Bassil testified that she has never allowed Klein to enter her property
        or cut trails through her brush. Email correspondence between Bassil and Klein
        from 2008 show that she did not permit him to enter her property or place anything
        on her property at that time. She provided photographs and surveys from 2021
        showing the paths Klein created without her permission. By his own admission,
        Klein has never sought permission from Bassil to enter her property or cut brush on
        her property to create a trail. Klein also testified to allowing and encouraging others
        to use the trails on Bassil's property, including his personal friends and his AirBnB
        guests. Klein maintains that he has not trespassed on Bassil's property because the
        property is his by adverse possession. However, as in Yusuf v. Hamed, Klein's claim
        merely creates a “competing inference” that can only be determined by a jury at a
        trial on the merits which has yet to be done. The Court does not find Klein's adverse
        possession claim to be so strong that Bassil has no chance of succeeding on the
        merits of her trespass claim. Bassil has provided evidence that she could reasonably
        succeed on a trespass claim, and she therefore has satisfied this preliminary

7
 In a third case, Bell v. Radcliffe, the Superior Court performed a Banks analysis and adopted a
broader interpretation of intentional trespass as the best rule for the Virgin Islands. Super. Ct. Civ.
No. 392/2013 (STT), 

, at *7 (V.I. Super. Ct. Apr. 30, 2015).
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        injunction factor.

Bassil v. Klein, 

, 34 (V.I. Super. Ct. 2021). It is axiomatic, however, that a court cannot

meaningfully assess a litigant’s likelihood of success on the merits without first determining what

elements the litigant needs to satisfy to prevail on that cause of action. Therefore, having

recognized that Virgin Islands courts had not spoken with one voice with respect to the elements

of a trespass action, the Superior Court possessed an obligation to determine those elements, even

if only for purposes of adjudicating the preliminary injunction motion.8 Nevertheless, while the

failure to conduct a Banks analysis or adopt an earlier opinion’s Banks analysis by reference would

ordinarily constitute reversible error, see Gov’t of the V.I. v. Connor, 

 (V.I. 2014),

in the interest of judicial economy we exercise our discretion to overlook the Superior Court’s

error and ascertain for ourselves the elements of a trespass cause of action. Accord, Browne v.

Gore, 

, 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial

economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done

in other cases in which [the] Court applies the same legal standard as a Superior Court judge”)

(collecting cases).

¶ 14    To ascertain the elements of trespass, we must—as with every other common law rule—

consider and weigh the three Banks factors: “(1) whether any Virgin Islands courts have previously



8
  We acknowledge that performing a Banks analysis—or considering any issue of first impression
for that matter—in the context of a preliminary injunction motion is often not ideal, given that the
court is being asked to make this determination often without the benefit of full briefing from the
parties. However, it is precisely for this reason that “the findings of fact and conclusions of law
made by a court granting a preliminary injunction are not binding at trial on the merits” and “do
not constitute law of the case,” Yusuf v. Hamed, 

 (collecting cases), and for that
reason “should not be cited as binding authority in the parties’ merits briefs.” Tip Top Constr.
Corp. v. Gov’t of the V.I., S. Ct. Civ. No. 2014-0006, 

, at *4 n.7 (V.I. Feb. 14,
2014) (unpublished).
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adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and

(3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon

v. Joseph, 

 (V.I. 2013) (citing Matthew v. Herman, 

 (V.I.

2012)). As we recently explained,

        [w]hile none of these three factors is individually dispositive, each plays an
        important role in the analysis. The first factor—whether other Virgin Islands courts
        previously adopted a particular rule—in effect requires a court to consider stare
        decisis; that is, whether the legal community and the public have reason to rely on
        a particular common law rule despite it not having yet been adopted by this Court.
        The second factor—the positions taken by other jurisdictions—informs the court of
        the existence of the majority and minority rules as well as the reasoning other
        jurisdictions relied upon to support them, thus ensuring that the court is not only
        aware of the potential possibilities but that it also may benefit from any national
        debate and how those rules may have operated in practice elsewhere. And the third
        and most important factor—determining the soundest rule for the Virgin Islands—
        requires a court to consider the practical implications of adopting a particular rule
        in the Virgin Islands as well as what rule is best in accord with the public policy of
        the Virgin Islands, including its consistency with related statutes, court rules, and
        judicial precedents. Notably, the ultimate goal of a Banks analysis is to ensure the
        creation of indigenous Virgin Islands law free of undue outside influence—as
        intended by Congress and the Virgin Islands Legislature in creating a local judiciary
        independent of the federal judiciary.

Robertson v. Banco Popular de P.R., 

 ¶ 28 (internal citations omitted). In other words,

a Banks analysis “involves more than simply the rote counting of judicial decisions,” id. at ¶ 29,

but rather comprehends a “holistic” consideration of the aim served by each factor.9

¶ 15    With respect to the first factor—the adoption of a particular rule by other Virgin Islands

courts—we seek “to determine the extent, if any, that the legal community and the public have

grown to rely upon and potentially shape their conduct by a given rule.” Robertson, 2023 VI at ¶

30 (citing Banks, 

 & n.10). Thus, it is the character of the decisions—“such as the



9
 See Kristen David Adams, The Move Toward An Indigenous Virgin Islands Jurisprudence: Banks
in its Second Decade, 91 FORDHAM L. REV. 1601, 1608-09 (2023).
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age of the decisions, whether these judicial decisions are binding or non-binding precedent, and

the general reasoning that underlies those decisions”—that is of particular importance, since the

legal community and the public will necessarily grow to rely more on a single long-standing, well-

reasoned precedential opinion issued by an appellate court of last resort than a large number of

recent non-binding trial court decisions that adopt a rule “mechanistically or uncritically.” 

¶ 16    The issue of what elements a plaintiff asserting an intentional trespass cause of action must

prove is not one of first impression for this Court. In one of our earliest decisions, the Court

adopted the rule set forth in section 158 of the Restatement (Second) of Torts:

        A plaintiff claiming trespass has the burden of proving that the defendant
        intentionally (a) entered land in the possession of the other, or caused a thing or a
        third person to do so, or (b) remained on the land, or (c) failed to remove from the
        land a thing which he was under a duty to remove.

Hodge v. McGowan, 

 (V.I. 2008) (internal quotation marks omitted) (quoting

RESTATEMENT (SECOND) OF TORTS § 158 (1965)). Of course, our Hodge decision pre-dates our

subsequent Banks precedent and relied exclusively on the former 1 V.I.C. § 4 as the basis for

invoking the Restatement rule in determining the intentional trespass claim. But while we have

held that “the Superior Court need not consider itself foreclosed from adopting a different common

law rule” when the only binding precedent applicable to it pre-dated Banks, Connor, 

n.1, this is not tantamount to dispensing with the long-standing rule “that the Superior Court may

not overrule [the] Supreme Court.” Gerace v. Bentley, 

 (V.I. 2016) (quoting

Ebersole v. Southeastern Pa. Transp. Auth., 

, 290 n.2 (Pa. Commw. Ct. 2015)).

Importantly, we have emphasized that the Superior Court may only adopt a different common law

rule if it has done so through a “thoroughly explain[ed]” Banks analysis in which our pre-Banks

decision is given appropriate weight as part of its “consider[ation] with respect to the first Banks
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factor.” Connor, 

 n.1. Since the purpose of the first factor is to account for reliance

interests and to consider stare decisis, the fact that this Court—the highest court of the Virgin

Islands, vested with exercise of the supreme judicial power of the territory, see 4 V.I.C. § 21—has

adopted the Restatement rule, even if in a pre-Banks decision, provides extraordinary support for

accepting the Restatement or majority rule, for the legal community and the public can rely on no

greater authority than a decision of this Court for a determination of the common law of the Virgin

Islands. Thus, in this circumstance the first factor must necessarily strongly favor the Restatement

or majority rule, since a series of non-binding Superior Court decisions—regardless of how many

in number—can never establish a greater reliance interest among the legal community and the

public than a precedential decision of this Court.

¶ 17    As to the second factor—the approaches taken by other United States jurisdictions—most

jurisdictions to consider the question have also elected to follow the Restatement approach, either

by adopting the language of section 158 largely verbatim or choosing slightly different language

that is nevertheless consistent with the Restatement.10 Of great significance, however, is that the


10
   See, e.g., Callaway v. Whittenton, 

 (Ala. 2003); Taft v. Ball, Ball &
Brosamer, Inc., 

 (Ariz. Ct. App. 1991); Guerrero v. DLB Constr. Co., 

, at *16; Spittler v. Charbonneau, 

, 1208 (Haw. Ct. App. 2019); Medeika v.
Watts, 

 (Me. 2008); Martin v. Artis, 

 (Mont. 2012); Holcomb
v. Rodriguez, 

, 291 (N.M. Ct. App. 2016); Bradley v. Am. Smelting & Ref. Co., 

 (Wash. 1985); Grygiel v. Monches Fish & Game Club, Inc., 

 (Wis.
2010); St. Paul Church, Inc. v. Bd. of Trs. of Alaska Missionary Conference of United Methodist
Church, Inc., 

 (Alaska 2006); Pub. Serv. Co. v. Ban Wyk, 

(Colo. 2001); City of Bristol v. Tilcon Minerals, Inc., 

 (Conn. 2007); Robert’s
River Rides v. Steamboat Dev. Corp., 

 (Iowa 1994); Terre Aux Boeufs Land
Co. v. J.R. Gray Barge Co., 

 (La. Ct. App. 2001); Adams v. Cleveland-Cliffs
Iron Co., 

 (Mich. Ct. App. 1999); Johnson v. Paynesville Farmers Union
Coop. Oil Co., 

 (Minn. 2012); Lambert v. Holmberg, 

(Neb. 2006); Case v. St. Mary’s Bank, 

 (N.H. 2013); Ross v. Lowitz, 

 (N.J. 2015); G&D Enters. v. Liebelt, 

, 858-59 (N.D. 2020); Merino v.
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minority of jurisdictions which have adopted a different rule have not abandoned the Restatement

approach entirely, but rather have largely adopted the same test with changes to specific elements,

such as eliminating the requirement that the trespass be intentional11 or presuming damages instead

of requiring the plaintiff to prove that he or she suffered harm.12 Consequently, the second factor

favors retaining the Restatement approach we previously adopted in Hodge.

¶ 18      Finally, the third and most important factor—what represents the soundest rule for the

Virgin Islands—likewise favors reaffirmance of the Restatement approach we endorsed in Hodge.

As we recently explained, an important determinant of whether a given common law rule

constitutes the soundest rule for the Virgin Islands is whether that rule “is inconsistent—or at least

in tension—with existing Virgin Islands common law and public policy.” Robertson, 2023 VI at

¶ 37. As noted earlier, this Court already adopted the Restatement approach in Hodge. Although

we did so through application of former 1 V.I.C. § 4, overruling a precedential decision of this

Court—as opposed to simply declining to follow a decision of another Virgin Islands court—is

not something which should ever be undertaken lightly, particularly when there is no indication

that the rule adopted by our prior precedent is “unworkable” or was “badly reasoned.” Banks, 

 n.10. This is because the public interest very strongly favors “the evenhanded,

predictable, and consistent development of legal principles” and “foster[ing] reliance on judicial



Salem Hunting Club, No. 

, 

, at *18-19 (unpublished);
Kennedy v. Consol Energy Inc., 

 (Pa. Super. Ct. 2015); Zwart v. Penning, 

 (S.D. 2018); Walker Drug Co. v. La Sal Oil Co., 

 (Utah
1998); Harris v. Carbonneau, 

 (Vt. 1996); Bellis v. Kersey, 

, 824-
25 (Wyo. 2010).
11
 See, e.g., Ralphs Grocery Co. v. Victory Consultants, Inc., 

 (Cal. Ct.
App. 2017); Uthus v. Valley Mill Camp, Inc., 

, 1239 (Md. 2021).
12
     See, e.g., Gross v. Capital Elec. Line Builders, Inc., 

 (Kan. 1993).
Klein v. Bassil                               

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Opinion of the Court
Page 15 of 23

decisions” so as to “contribute[] to the actual and perceived integrity of the judicial process.” 

(quoting Payne v. Tennessee, 

 (1991)). Having already adopted the Restatement

definition of trespass fifteen years ago and seeing no evidence whatsoever that this approach has

been unworkable or otherwise deficient—whether in the Virgin Islands or elsewhere—it would be

wholly arbitrary and unnecessarily disruptive to adopt a different common law rule merely for the

sake of adopting a different common law rule.13 Accordingly, we reaffirm and adopt as the

soundest rule for the Virgin Islands, the rule first announced in Hodge, that

        a plaintiff claiming trespass has the burden of proving that the defendant
        intentionally (a) entered land in the possession of the other, or caused a thing or a
        third person to do so, or (b) remained on the land, or (c) failed to remove from the
        land a thing which he was under a duty to remove.

 (internal quotation marks omitted) (quoting RESTATEMENT (SECOND) OF TORTS §

158 (1965)).

¶ 19    Applying these elements of trespass, we conclude that the Superior Court committed no

error when it determined that Bassil was likely to succeed on the merits of her claim. Bassil not

only introduced evidence demonstrating that she owned Parcel No. 2D-12 Remainder, but Klein

admitted to entering the property, creating and using trails on the parcel, and encouraging his

tenants to use those trails to access the beach. Moreover, both Bassil and Klein testified that Bassil

never gave Klein permission to enter the parcel or to create trails. In addition, the evidence

indicated that Klein offered to buy Bassil’s parcel in 2014 and 2015, thus indicating that he knew

that Bassil owned the property – establishing not only that he intentionally entered Bassil’s



13
   In fact, one of the recent Superior Court decisions to reject the Restatement approach did so for
precisely that reason, determining that adopting a different broader definition of trespass “will
allow Virgin Islands courts to develop their own body of law relating to trespass.” Bell, 

, at *7.
Klein v. Bassil                               

S. Ct. Civ. No. 2021-0044
Opinion of the Court
Page 16 of 23

property without authorization, but that he could not have acquired the parcel by adverse

possession since Klein could not have exercised “[t]he uninterrupted, exclusive, actual, physical

adverse, continuous, notorious possession of real property under claim or color of title for 15 years

or more” if he acknowledged Bassil as the owner of the property at any point during that fifteen

year period. 28 V.I.C. § 11. Consequently, the Superior Court did not err when it found that

Bassil’s trespass claim had a reasonable likelihood of success on the merits over Klein’s adverse

possession claim.

                            2. Likelihood of irreparable harm to movant

¶ 20    Irreparable harm is “certain and imminent harm for which a monetary award does not

adequately compensate.” Yusuf, 

 (collecting cases). A moving party will satisfy the

irreparable harm test if it can demonstrate that its monetary damages are either “difficult to

ascertain or are inadequate.” 

 When the record indicates that the plaintiff’s loss is a matter of

a “simple mathematic calculation," the plaintiff fails to establish irreparable injury for preliminary

injunction purposes. 

¶ 21    The Superior Court determined that harm to Bassil was not only imminent, but currently

and continually happening due to damage to her property and the loss of use and enjoyment of her

property resulting from Klein’s continuing trespass. The Superior Court found this harm to be

irreparable based on the difficulty of calculating monetary damages due to the unknown number

of guests who have used and would continue to use the paths on Bassil’s parcel absent injunctive

relief. Furthermore, the Superior Court highlighted the potential premises liability to which Bassil

could be exposed, as well as the cloud that this dispute has placed on her title, in concluding that

these issues may not be adequately redressed with monetary damages. Finally, the Superior Court

emphasized the rights and intangible benefits that accompany property ownership.
Klein v. Bassil                              

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Opinion of the Court
Page 17 of 23

¶ 22    While Klein contends that this jurisdiction does not recognize a presumption of irreparable

harm when there is interference with a property right, Virgin Islands courts have in fact

consistently recognized the value of property ownership and the “intangible benefits” associated

with it.14 Virgin Islands courts have acknowledged that land in the Virgin Islands is a “particularly

valuable and scarce resource.” Thomas v. V.I. Bd. of Land Use Appeals, 

 (V.I.

2014); see also Pavel v. Estates of Judith’s Fancy Owners’ Ass’n, Inc., 

, 695 (V.I. 2019)

(holding that “covenants attached to property in the Virgin Islands should be construed narrowly

to promote the free use of land” because “[l]and in the Virgin Islands is a particularly valuable and

scarce resource, and the Legislature has already established comprehensive zoning regulations

governing its use”) (internal quotation marks omitted); In re Estate of Todman, 

(V.I. Super. Ct. 2006) (“When real property is the subject matter of an agreement, the legal remedy

of damages is assumed to be inadequate, because each parcel of land is unique, and it is highly

unlikely that an identical parcel of land could be purchased in substitution.”). Furthermore, courts

have indicated that a preliminary injunction is appropriate where property is involved, since

property is always unique under general principles of the law of equity, and its possible loss or

destruction usually constitutes irreparable harm. Gladfelter v. Fairleigh Dickinson Univ., 

  Hansen v. Gov’t of the V.I., 

 (V.I. Super. Ct. 1990) (recognizing benefits such
as “the increased sense of pride, well-being and security attendant to the right to choose when and
how to use, maintain and cherish one’s property or to prohibit its unauthorized use”); see also
Great Bay Condo. Owners Ass’n v. Neighborhood Ass’n, 

, at *42 (V.I. Super.
Ct. Apr. 11, 2022) (unpublished) (relying on Hansen to support its finding that even a timeshare
plan is a form of property ownership that permits the purchaser to enjoy the intangible benefits
associated with property ownership). Furthermore, the Third Circuit has held that where “interests
involving real property are at stake, preliminary injunctive relief can be particularly appropriate
because of the unique nature of the property interest.” Minard Run Oil Co. v. U.S. Forest Serv.,

 (3d Cir. 2011).
Klein v. Bassil                               

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Opinion of the Court
Page 18 of 23

91, 99 (V.I. Super. Ct. 1990) (citing Bennet v. Dunn, 

 (D. Nev. 1980); 42 AM.

JUR. 2D Injunctions §§ 48-49 (1969)).15 In cases of continuing trespass, it has been suggested that

courts of equity should look to the nature of the injury inflicted, along with the fact of its

continuation, rather than to the magnitude of the damage inflicted.16 We therefore conclude as a

matter of law that real property is unique in the Virgin Islands, creating a presumption of

irreparable harm without a showing of money damages.

¶ 23    Bassil’s parcel of land is particularly unique as one of the last undeveloped beachfront

properties near Secret Harbor beach. Klein’s interference with her property infringed on the

intangible benefits of property ownership that belong to Bassil. The evidence supports the

Superior Court’s conclusion that the past deprivation of Bassil’s rights to use and maintain her

parcel as she sees fit constitutes irreparable harm.

¶ 24    In light of the strong presumption of irreparable harm in cases of interference with a

property right as well as the evidence submitted by both parties showing ownership, we find no

error that was committed by the Superior Court in finding that Bassil would suffer irreparable harm




15
   See also First Am. Dev. Group/Carib, LLC v. WestLB AG, Civil No. ST-09-CV-535, 

, at *9-10 (V.I. Super. Ct. 2012) (unpublished) (“The Court agrees with First American
that having its rights and interests foreclosed upon a unique asset such as real property could result
in an injury that money damages may not compensate for.”).
16
   See Obermiller v. Baasch, 

 (Neb. 2012) (finding that an injunction was
necessary because the fence constructed by the appellants constituted a continuous and repeated
trespass); John Larkin, Inc. v. Marceau, 

 (Vt. 2008) (“Plaintiffs showing a direct and
tangible invasion of their property may obtain injunctive relief and at least nominal damages
without proof of any other injury”); Amaral v. Cuppels, 

 (Mass. App. Ct. 2005)
(holding that the projection of golf balls from the defendants’ property onto the plaintiffs’
properties constitutes a continuing trespass).
Klein v. Bassil                               

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Opinion of the Court
Page 19 of 23

absent injunctive relief.17 Therefore, because the Superior Court’s conclusion that Bassil satisfied

this factor of the analysis bears a rational relationship to supportive evidentiary data, we affirm the

Superior Court’s findings on this factor.

                            3. Likelihood of irreparable harm to non-movant

¶ 25    The Superior Court must determine “whether, and to what extent, [a] nonmoving part[y]

will suffer irreparable harm” if injunctive relief is granted. Yusuf, 

. Additionally,

the Superior Court must consider whether a preliminary injunction would destroy the status quo,

as one of the main goals of a preliminary injunction is to maintain the status quo, which is defined

as “the last, peaceable, noncontested status of the parties.” 

 (quoting Opticians Ass’n of Am. v.

Indep. Opticians of Am., 

 (3d Cir. 1990)).

¶ 26    The trial court determined that the status quo for these purposes was in 2015 when Klein

made an offer to purchase the parcel. However, Klein did not raise the issue of status quo in his

appellant’s brief and we therefore consider argument as to this issue waived. See V.I. R. APP. P.

22(m). In balancing the harms between the parties, the Superior Court determined that Klein

would not suffer irreparable harm if an injunction were to be granted because he would merely

lose private beach access over Bassil’s property to which he was not entitled. In his brief, Klein

asserts that the Superior Court erred in not giving more weight to the harm that his business,




17
   The Superior Court also considered that monetary damages in this case would be difficult to
calculate and possibly inadequate, mentioning the combination of past, current, and continuing
trespass by an unknown number of individuals on Bassil’s property; interference with her property
rights of using and maintaining her parcel as she sees fit; the potential premises liability that Bassil
may be exposed to; and the cloud placed on the title to her property.
Klein v. Bassil                               

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Opinion of the Court
Page 20 of 23

reputation, and health interests would suffer in the face of a preliminary injunction.18

¶ 27    Specifically, Klein asserts that the Superior Court did not give enough weight to the

evidence showing that Klein needs access to the beach for saltwater lung therapy; that he cannot

access the beach like the rest of the public beachgoers because he is disabled; that the service road

to the beach is dangerous; and that he relied on having beach access in choosing to purchase Parcel

No. 2D-11. The Superior Court reasoned that Klein had alternative means to obtain his saltwater

lung therapy other than by accessing the beach over Bassil’s parcel. Similarly, in Sam’s Food

Distribs., Inc. v. NNA&O, LLC, this Court found that the nonmoving party had alternative means

of providing storage for its food products other than by means of refrigerated trailers parked

directly in front of the moving party’s access to its parcel, and thus that the balance of harms

weighed in favor of the moving party. 

, 468-69 (V.I. 2020). Due to being able to access

the public beach like other beachgoers, Klein has failed to establish that issuance of the preliminary

injunction would subject his health to irreparable harm, and therefore we conclude that the

Superior Court did not err in its factual determination on this issue.

¶ 28    Because the Superior Court’s finding is well supported by the evidence, we find no error

in its determination that the likelihood of irreparable harm to Klein is low and that the balancing

of harm to the parties favored issuance of the preliminary injunction restraining Klein from

interfering with and entering Bassil’s property.


18
   In its order, the Superior Court focused its analysis of irreparable harm to Klein on his health
concerns and maintaining the status quo. The Superior Court did not make factual findings on the
harm to Klein’s business or reputation. Klein did not provide the Superior Court with any relevant
evidence to show that his business or reputation interests would be harmed by granting the
preliminary injunction. In fact, Klein asserted harm to his reputation for the first time in his
appellant’s brief. Thus, we consider the arguments regarding harm to his business and reputation
interests waived for purposes of determining his alleged irreparable harm. See V.I. R. APP. P.
22(m).
Klein v. Bassil                                

S. Ct. Civ. No. 2021-0044
Opinion of the Court
Page 21 of 23

                            4. Public Interest

¶ 29    This Court has explained that “[i]n exercising their sound discretion, courts of equity

should pay particular regard for the public consequences in employing the extraordinary remedy

of injunction.” Yusuf, 

 (internal citations omitted). In conducting its public

interest analysis, the Superior Court should “seek to prevent the parties from halting ‘specific acts

presumptively benefiting the public . . . until the merits [can] be reached and a determination made

as to what justice requires.’” 

 (internal citations omitted). The public interest factor will

“typically favor the moving party ‘if [it] demonstrates both a likelihood of success on the merits

and irreparable injury.” 

 at 858 n.11 (internal citations omitted).

¶ 30    The Superior Court found that granting an injunction for Bassil would have little to no

consequence on the public; no public activities would be halted by this injunction; and members

of the public would not be impacted by an injunction “that prevents one resident from accessing

the beach through his neighbor’s private property.” Klein argues that an injunction prohibiting

him and his renters from using the trails would “reduce tax revenue and the number of tourists

patronizing his business,” thereby causing the public interest to suffer. Klein likens his situation

to that in Yusuf where this Court found that “preventing the potential loss of business, jobs, and

tax revenue in a community” is a matter of public interest. 59 V.I. at 858. However, the dispute

in Yusuf involved three large supermarkets and the employment of approximately 600 Virgin

Islanders.   Id. at 844, 857.     Klein’s rental business, which he began in January 2021, is

distinguishable from the circumstances in Yusuf. The preliminary injunction affects primarily

Klein’s private interests, rather than affecting the public interest at large.

¶ 31    Moreover, the Superior Court found that the public’s interest is better served by

discouraging trespass and disputes of this type between neighbors. In his brief, Klein does not
Klein v. Bassil                                 

S. Ct. Civ. No. 2021-0044
Opinion of the Court
Page 22 of 23

address this finding, but rather emphasizes the fact that Bassil is a non-resident property owner.

Although “[p]ublic interest can be defined a number of ways,” the Superior Court appropriately

identified being able to use and enjoy one’s land as one sees fit, discouraging trespass, and

promoting amicable relationships between neighbors as significant public interests. Yusuf, 

 (quoting Opticians Ass’n of Am., 

). Because the Superior Court’s factual

determination bears a rational relationship to the supporting evidence, we find no error in its

conclusion that the public interest factor weighs in favor of granting injunctive relief.

                                         III.    CONCLUSION

¶ 32    The Superior Court committed reversible error by failing to conduct its own Banks

analysis, or adopt such an analysis as set out in one of the Superior Court’s prior opinions on the

subject, so as to permit it to satisfy its obligation to enunciate and apply the elements of a of a civil

trespass cause of action in the Virgin Islands. Doing so was necessary in this case because

injunctive relief was sought and a court cannot meaningfully assess a litigant’s likelihood of

success on the merits on the cause of action being asserted, as required to establish an entitlement

to injunctive relief, without first determining what elements the litigant needs to satisfy in order to

prevail on that cause of action. Nevertheless, this Court, exercising its discretion in the interest of

judicial economy, has overlooked that error and, after conducting the required Banks analysis,

reaffirms that the approach first announced in Hodge v. McGowan, 

 (V.I. 2008),

adopting the factors identified in the Restatement (Second) of Torts § 158 (1965), is the soundest

rule for the Virgin Islands. Applying those factors, the evidence clearly supports the Superior

Court’s finding that Bassil has a reasonable probability of success on the merits, that she would

suffer irreparable harm absent an injunction, that Klein would not be irreparably harmed by the

injunction, and that the injunction is in the public interest. We therefore conclude that the Superior
Klein v. Bassil                             

S. Ct. Civ. No. 2021-0044
Opinion of the Court
Page 23 of 23

Court did not abuse its discretion in granting the preliminary injunction. Accordingly, we affirm

the Superior Court’s August 16, 2021 order granting the preliminary injunction in favor of Bassil.



Dated this 18th day of December 2023.
                                                                   BY THE COURT:


                                                                   /s/ Rhys S. Hodge___
                                                                   RHYS S. HODGE
                                                                   Chief Justice

ATTEST:
VERONICA J. HANDY, ESQ.
Clerk of the Court


By: /s/ Jahkyda Coakley
    Deputy Clerk II
Dated: December 18, 2023