LAW OF TORTS II - TRESSPASS TO LAND

What is defined as land? (legally)

- surface

- earth below

- all vegetation (whether labour/manual)

- all things attached to the earth

- land that is covered by water (pond/river/pool)

*all of the above defined in s5 of the National Land Code 1965

What is trespass to land?

- intentional wrongful entry and unreasonable interference with another's ownership/possession of the
land

- can only be committed against someone who has possession over the land

- actionable per se [Cheah Kim Tong v. Taro Kaur]

What is possession?

- who can sue?

-> only person who has possession over the land

-> not merely ownership but possession

3 Kinds of Possession

- possession in law

- possession in fact

- immediate right to possession

1. Possession in Law (de jure)

- has the intention to exclude the world at large from interefering with the thing in question
- does so on his own account & name

- recognized in law (by virtue of the contract)

- example: house buyer (land owner), tenant (by virtue of the tenancy agreement)

*what about lodger?

-> mere presence does not amount to possession

-> not in the contract to consider the hotel/place to be yours

2. Possession in Fact (de facto)

- plaintiff has the right to use the land + the ability to exclude others

= plaintiff has actual possession/physical control of the land (even though not legally recognized)

- e.g: house owner (have possession in law + in fact simultaneously)

- e.g: someone who stays on the land

- plaintiff can bring an action against anyone who commits TTL except:

a) another person who has possession in fact

b) person who has possession in law

c) person who has immediate right of possession

[Sanik v. Hasan]

- not necessary that possession be lawful

- plaintiff had better right of possession compared to D

- D had no superior title (not possession in law bcs in the first place, he used the land without
permission)

3. Immediate Right to Possession (IRP)

- the person may accordingly sue for any trespass committed since the commencement of his right

- doctrine of the right of immediate possession, P can sue while he was actually out of possession

- also known as doctrine of relation back

[Yip Shou San v. Marubeni]

Elements of Trespass

- Intentional act (not necessary to prove that D knew he was trespassing)

-> if D comes on the land against his will (duress) = trespass not intentionally

- Interference with possession

a) interference may occur:

1. by wrongful entry (personal entry by D/by any other person/animal into the land/ building possessed
by P)

2. remaining beyond the permission given (if permission expires and D still stays, D will be deemed to
have commit TTL)

3. by throwing/placing things on the P's land [Rigby v. Chief Constable of SY & Yip Shou San v. Marubeni]

Interference on the Highway

[Hickman v. Maisey]

- Held: Trespass: unreasonable use of highway (spying), D was not using the road for its real purpose

Tresspass to Subsoil and Airspace

- definition of land in S5 of the NLC

[Woolerton & Wilson Ltd. v. Richard Costain Ltd.]

- tower crane on construction and site swung over adjoining land

- held: TTL (/), P was entitled to injunction (order by court to do/not to do something)

[Kelsen v. Imperial Tobacco Co.]

- advertising signboard by the D, only projected 8 inches into the airspace over the P's shop (too close)

- held: TTL (/), mandatory injunction was ordered to remove the signboard

[Karupanan v. Balakrishnan]

- trespass to P's enjoyment of airspace and subsoil

- D's sewerage system, manholes and septic tanks under P's land

- Federal Court: serious case of trespass

- immaterial if the source of trespass existed before new owner came/whether or not he knew of it

- s44 (1)(a) of the National Land Code 1965: exclusive right to subsoil and airspace above the surface of
the land

- how high above the surface?: reasonably necessary for the enjoyement of P's land

[Bernstein v. Skyviews and General Ltd]

- held: flight of an aircraft several hundred feet above a house is not a trespass at common law (not
reasonably necessary for P's enjoyment of land)

- HOWEVER, if an aircraft/anything from it falls on the land/comes into contact with any parts of the
land then there might be a trespass, regardless of the height

- interference by aircraft: P can invoke s19 of the Civil Aviation Act 1969 and claim for damages

*S10 of the Civil Aviation Act 1969

-> any material damage caused by aircraft in flight, shall be recoverable from the owner of the aircraft
(strict liability)

*for trespass to airspace, P can bring action under:

a) s.19 of CAA (strict liability so does not need to prove negligence/intention)

b) trespass (a bit hard for aircraft bcs need to prove intention - but maybe can use for drones flying too
close on the land)

c) negligence

Trespass ab initio

- trespass = wrongful entry

- BUT, if a person enters lawfully (by virtue of the law) and then abuses his authority (by committing a
positive act of abuse), he can be sued for trespass ab initio (the conduct of trespass will e counted from
the very beginning)

- claim for mere trespass will fail bcs he entered lawfully

- positive act of abuse: must rise from action, not omission

- purpose of doctrine: to protect the public against abuse of authority (bcs usually authority can lawfully
enter the land)

[Cinnamond v. British Airport Authorities]

- drivers of mini cabs given permission to enter airport but cannot hang and tout, but they touted

- held: reason for entry was abused (sued for trespass ab initio) + positive act of abuse
[Six Carpenter's case]

- they entered into the restaurant and ate but refused to pay

- action brought under trespass ab intion failes

- they were not trespassers (merely omission to pay - amounts to a negative act)

[Azizah v. Dato' Bandar]

- local authority contractor came to do repair works on a river to prevent floods (pursuant to s53 (1) of
the Street, Drainage & Building Act

- while doing so, they encroached P's land

- P sued for TTL and alternatively for trespass ab initio//claiming that the contractor had abused their
authority (failed to manage works & damaged some property - some parts of turf & 2 coconut trees
were destroyed)

- held: D's act was lawful//no abuse on the land (no TTL & no trespass ab initio)//compensation already
been paid for any damage

[Elias v. Pasmore]

- police lawfully entered a premise to arrest a man + seize some documents (although some were not
lawfully taken)

- held: not trespassers ab initio (they had only trespassed the documents unlawfully taken)

- their entry was therefore lawful from the beginning to the end

*Trespass ab initio: Criticized

[Chic Fashions (West Wales)]

- L. Denning criticized in relation to the duties of a police officer

- once an entry is lawful, it would be improper to hold the entry unlawful subsequently UNLESS it falls
under the circumstances of Cinnamond's case

- his (police officer) entry does not become unlawful simply because he unjustifiably seizes other goods,
HOWEVER if he unjustifiably took the goods then he may be liable under TTG but not TTL (similar to Elias
v. Pasmore)

Defences
1. License

- permission/authority

- e.g: guests/lodgers at hotels/students in hostel/tenancies/leases/easements/etc.

- as opposed to contractual licenses, there is also gratuitous licences (allowed to stay on the land
without valuable consideration)

- can be revoked at-will (can be revoked anytime) by the licensor//after, licensee becomes a trespasser if
they stay beyond time

[Ladang Tai Tak v. Suppiah]

2. Justification by law

- statute: authorise/impose duty on local authority/organisations to enter on a land BUT may give rise to
TTL

- e,g: s53 of the SD&BA 1974, s16-s18 of the CPC (to conduct search in the place a person is to be
arrested), s283-284 of the NLC 1965 (easement: the rights given by one proprietor to another for
beneficial enjoyment of his land)

3. Necessity

[Cope v. Sharpe]

- there was a fire on P's land

- nesting pheasants on D's land (D had shooting rights over the neighbouring land)

- D light a fire on between P's land to extinguish the fire

- defence of necessity was successful (there was a risk that the fire could get bigger, D acted reasonably)

4. Mistake

- mistake is no defence (Malaysia follows Torrent system - very strict

[MBF Property v. Madihill]

- court ordered to restore the land to its original position + perpectual mandatory injuction
(permanently prohibited from using the land)

Remedies

1. Damages
2. Injunction

- order by the court to compel D to do/to refrain from doing a certain act

3. Re-entry onto the land (self-help remedy)

- a person entitled to possession can enter/re-enter the premise and may use necessary force

- s7 of the SRA: provides for re-entry BUT cannot use unnecessary force

- don't take law into your own hands

4. Action for Recovery of Land (ejectment) - to get people out of the land

- s7 and s8 of the SRA

[Poh Swee Siang v. Trustees of Leong San Tong Koo Kongsi] - Kongsi case

- P was a tenant since 1950//given two notice from D (owner of the land) to move out but P refused to
do so

- D brought 20-30 men and bulldozers and demolished everything, threatened to forcibly evict P and
during all this, 1 female worker was killed

- P sued for trespass but the court ruled in favour of D

- but court found that D had acted high-handedly (not according to s7 of the SRA - acted on his own
instead of resorting to the law)

- hence, the court awarded P with exemplary damages and special damages

- would possibly not have happened if D resorted to law instead of taking matters into his own hand

- s341 of the NLC: adverse (unfavorable) possession of land for any length of time shall not constitute a
bar to bringing an action for recovery (limitation period) - no limitation period for adverse possession -
as long as D is still adversely staying on the land

5. Mesne profit

- if D has kept P out of possession of his land, the court may award this remedy

- example: double rent (s28 (4) (a) of the CLA 1956)//profits made by D during his unlawful possession of
P's land