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406 Trespass to land

In order to discuss what a defendant needs to have done in order to commit the tort of trespass
to land, we need to distinguish cases where a defendant is alleged to have committed the
tort: (a) by physically moving onto the claimant’s land; (b) by causing an inanimate object
to go onto the claimant’s land; and (c) by causing an animal to go onto the claimant’s land.
A. Physical movement
A defendant will not be held to have ‘crossed’ the boundary of the claimant’s land unless he
had sufficient control over his own movements for the action which took his body across
the boundary to be attributed to him. In Smith v Stone (1647), the defendant pleaded that
he had been carried across the boundary onto the claimant’s land by the force and violence
of others. Roll J held that this meant that the defendant had not committed the tort of
trespass to land in relation to the claimant. The same judge later held that the defendant
would have been liable if he had crossed the boundary under duress. It might be different,
however, if a threat caused A to leap across the boundary of B’s land in an instinctive panic.
B. Inanimate objects
With regard to the case where A has caused some object or matter to move directly onto land
possessed by B, it is orthodox to distinguish between the movement of such a thing across
the boundary which is a direct result of A’s actions (and thus within the scope of the tort)
and a movement which is an indirect consequence of A’s behaviour (and thus outside the tort).
The primary factor which the courts will use when trying to identify this distinction is
the degree to which A’s actions can be said to have controlled the crossing of the boundary
by the object or matter. Thus where A has placed or thrown or fired an object across the
boundary onto land B possesses A will have committed trespass to land in relation to B. But
where A has released some substance into the atmosphere which has then emanated across
the boundary (for instance, where A’s operations release acid fumes which then drift on the
breeze across the boundary) A will not have committed trespass to land, though B will still
gain redress if he can establish that A committed the tort of private nuisance in acting as
he did.
Similarly, if A loses control of a vehicle that he is driving so that it leaves the road
and crosses onto land possessed by B this crossing is likely to be considered an indirect
consequence of A’s actions.
The distinction between crossings which are a direct result of the defendant’s actions and
those which are indirect consequence of the defendant’s actions is not the same as the
distinction between crossings which are intentional and those which are unintended. In
some circumstances, the connection between A’s behaviour and an unintended crossing
will be so close that A will be unable to deny that the crossing was a direct result of his
behaviour. For instance, if Brian hits a golf ball towards land possessed by Chloe with the
intention that it should stop just before the boundary then if, despite his intention, it
bounces across the boundary it is unlikely that he will be able to claim that the crossing was
Braithwaite v South Durham Steel Co Ltd [1958] 1 WLR 986.
For the tort of private nuisance, see below, chapter 15.
Thus A will not be liable in relation to B for trespass to land, but may be liable for the tort of negligence. The
situation would be different if A chose to drive off the highway and onto B’s land in order to avoid colliding with
another vehicle or a pedestrian, though here A may be able to rely on the defence of necessity.