Trespass to Land

It is a form of infringement on property rights.

The intentional/negligent act of D which directly interferes with P’s exclusive possession of the land without lawful justification.

Common law (traditional) – land was defined as what was fixed to the land, the air space above the land up to the sky and the soil content beneath the land down to its depths.

Modern law – allows landowner to possess, and maintain an action in trespass in relation to, the airspace above the land or the subsurface beneath to the extent that is reasonably necessary for the enjoyment of the land or the extent to which control can be exercised.

· Cujus est solum ejus est usque ad coelum et inferos à ‘the rights in the soil extend to heaven and hell’ – old latin maxim.-   

Bernstein of Leigh v Skyways & General Ltd - Skyway (D) had an idea for a business – why don’t we fly over their properties and take pictures of their homes – then we will sell them photos of their own properties – so they went to Bernstein and tried to sell him a photo of his house – he basicly told them to piss off and that he “owned the heavens” above his property – he sued in trespass over the issue and the court said, sorry, no go! Primarily because there was no support for his view that his rights extended right up in the sky to the heavens – they said you restrict the height so as is necessary “for the ordinary use and enjoyment of the land and structure upon it” – so essentially the plane flying over did not impact the enjoyment or ordinary use of the land.

Kelson case v Imperial Tobacco 1957 - two commercial premises next to each other – the sign of one shop overhung the neighbours premises by 20 cm – this was held to be trespass because it interfered with the ordinary use and enjoyment of the adjoining property as it partially blocked customers viewing the neighbours shop sign etc.

It is therefore trespass if it interferes with the ordinary use and enjoyment of the property.

Nature of D’s act

• Must constitute some physical interference which disturbs P’s exclusive possession of the land – Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937)

Nature of P’s interest in the land

P must have exclusive possession of the land at the time of the interference. Exclusive possession refers to the right to use or hold the land to the exclusion of all others. Exclusive possession is distinct from ownership. Ownership refers to title in the land

Possession may be immediate or constructive , depending on the material possessed.

• A co-owner cannot be liable in trespass in respect of the land he/she owns; but this is debatable where the “trespassing” co-owner is not in possession – Greig v Greig
• A co-possessor can maintain an action against a trespasser – Coles Smith v Smith & Ors
• A trespasser/squatter in exclusive possession can maintain an action against any other trespasser
• Licensee is one who has the permission of P to enter or use land belonging to P
• A licensee is a party not it possession, and can therefore not sue in trespass
• Licensee for value is entitled to sue - Vaughan v Shire of Benalla (1891)  – licensee sued for trespass
• De facto possession sufficient to sue for trespass – Newington v Windeyer (1985)

Title to land is important because:

Ocean Estates v Pinder [1969] – owners had free hold title to land but their possessory acts
in relation to the land had been exiguous, succeeded in trespass against the defendant.

Delaney v TP Smith & Co [1946] – owner of land who takes steps to evict its present possessor and regain possession does not commit trespass to land.

Trespass to Highway

Highway – public right of way over private land. Misuse of highway will lead to action taken by adjacent landowners or highway authority – Harrison v Duke of Rutland [1883]

Just tertii (right to a third party) is not a defence to one who has disturbed P’s actual possession of the land; Davison v Gent (1897) 156 ER 1400

 

Act of D must be caused directly; Southport Corp v Esso Petroleum Co Ltd [1954] (discharging of oil which was washed to the shores was too indirect to be trespass)

Watson v Cowen [1959]; proven that although damage caused was not a direct consequences of D’s actions it was a natural and probable consequence.

Where there is no entry on land, there can be no trespass; Bathurst CC v Saban (1985)

Entry under the terms of a license express or implied is not trespass. Burden of showing the existence of a license to enter rests on the entrant.
 
A person who enters the land for a purpose not covered by the license is a trespasser, even though a license to enter exists; Barker v The Queen (1983)

A bare license may be revoked at any time and the licensee required leaving the premises. Should the licensee fail to do so within a reasonable time, he/she becomes a trespasser.

Trespass after lawful entry by licensee

Bond v Kelly (1873); cutting more than the permitted amount of timber of land which he had been permitted to enter – trespass held.

One who entered land under authority of law might become a trespasser ab initio, that is from the moment of entering because of actions committed subsequent to entry which were an abuse of the purpose of that entry.

Applied where the right to enter was conferred by law; acts of misfeasance committed on the land, not to non-misfeasance; where some ground exists justifying an original lawful entry despite latter acts of trespass committed on the premises, no trespass ab initio.

Continuing trespass arises where, after an initial trespassory entry or failure to leave land, the person or object constituting the trespass remains on the land.

Konskier v Goodman Ltd [1928] – contractor failed to remove rubbish left behind after completion of work, became trespassory on later failure to remove the rubbish in breach of contract.

Trespass must arise from the voluntary act of D

Smith v Stone (1647) – D did not commit trespass; thrown on land by third parties. D must be at fault. Strict liability may attend an intentional trespass where the D has no reason to believe a trespass is being committed.

Remedies

Damages for trespass

• Hogan v Wright [1963]; an intentional trespasser was liable for the foreseeable consequences of the trespass.

Injunction against further trespassers

• Prohibitory injunction against the commission of the trespass will lie in most cases of right; Patel v W H Smith Ltd [1987], the P need not show any damage or inconvenience arising from the trespass.
• Mandatory injunction – D obliged to undertake experience work in order to remove the trespass – more difficult to obtain. 

Ejectment – allowing the P to regain possession of the land to which the P is entitled.

• No damages can be rewarded in the action itself
• Combined with action for mesre profits P can claim damage done by D to land during time of occupancy and for profits taken from it during that time.
• Should a dispossessed person rely on the action of ejectment, jus tertii is no defence to that action unless the D had the authority of the true owner of the land for the dispossession of the P. Failure to prove jus tertii is seen in Smith v Smythe (1890)
• Not necessary to prove an absolute title to succeed in ejectment; Allen v Roughley (1955)