DATE DOWNLOADED: Tue Dec 6 10:06:51 2022

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

The Tort of Trespass to Land, 5 LAW COACH 87 (1924).

ALWD 7th ed.

, The Tort of Trespass to Land, 5 Law Coach 87 (1924).

APA 7th ed.

(1924). The tort of trespass to land. Law Coach, 5(6), 87-92.

Chicago 17th ed.

"The Tort of Trespass to Land," Law Coach 5, no. 6 (November 1924): 87-92

McGill Guide 9th ed.

"The Tort of Trespass to Land" (1924) 5:6 Law Coach 87.

AGLC 4th ed.

'The Tort of Trespass to Land' (1924) 5(6) Law Coach 87

MLA 9th ed.

"The Tort of Trespass to Land." Law Coach, vol. 5, no. 6, November 1924, pp. 87-92.
HeinOnline.

OSCOLA 4th ed.

'The Tort of Trespass to Land' (1924) 5 Law Coach 87

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
November, 193]4 o HE LAW COACH

irrespective of the actual loss. sustained.

b. In determining the question which it is, the Court
does not necessarily follow the language used by
the parties, it must look to all the circumstances
of the contract. (Webster v. Bosanquet.)
i. If the amount of the loss which one party
will sustain on a breach by the other might
be definitely calculated at "tbe time when the
contract is made-then a sum fixed is a
penalty.
(a) Thus a mortgage deed provides that if
5 per cent. interest is not paid punc-
tually, then 10 per cent., shall be
tharged is -Apeusity.
(b) But 10 per cent. interest reducible to
5 per cent. on punctual payment is.
perfectly valid.
(c) Also a stipulation that a debt payable
by instalments is to become due in full
on the failure to pay any one instal-
ment is valid.
ii. If the amount of loss could not defiaitely be
calculated, then the sum fixed is liquidated
damages. (Clydebank Engineering Co. v.
Castaneda.)
iii. If the contTact contains several clauses, and
the loss can be calculated as to some clause,
bntA not US to' oilae whebn the t0U4&aset IS
made, and a sum is fixed to be paid on the
breach of "any clause-it is a penalty.
(Kemble v. Farren.)
Where a single sum is payable on the
occurrence of one, more, or all of, certain
events, some of which ' would occasion
serious, -others trifling damages, the pre-
sumption is that it is a penalty. (Lord
Elphinstone v. Monkland Co.)
iv. The rules, however, are presumptions -as to
the intention of the parties--and the Court
should consider the wliole circumstances.

THE TORT OF TRESPASS TO LAND.

1. its Nature"
A. Trespass to land consists in the wrongful disturbance of
the possession of another, either by entering on.Athe
 THE LAW COACH, Novemiber i 1924

land or by remaining upon it unlawfully or by placing

caUttels upon it.
D The retredy for trespass in English Law is possessory,
just as it, is in the ease of wrongful dispossession.
I. The defendant must rely on the strength of his
own title and cannot plead the jos tertii.'
The jus tertii may be pleaded where the de-
fondant triospasscd with the authority of the true-
owner, or if the true owner bas .subsequently
trespi.s.
ratified the defendant's
1.1. A trespasser cannot; :ofcourse, by the -very act
of trespassing acquire immediately such a pos-
session as would entitle him to maintain trespass
* against the party -whom he has just ejected. "
III. Effective possession of land sufficitnt to maintain
an action of trespass against another may easily
be acquired, e.g., a squatter.
2. Its Essential Elements.
A. There naust be a physical nct of interterence with the
plaintiff's possession of the land. This may be corn-
mitted in three ways:-
I. By entry upon the land.
a. A person in possession of land' is entitled to
enjoy not only ithe surface, but his rights
extend usque ad coolum et ad inferos.
b. To what extent it is a trespass in these days
to fly in 'an aeroplane over anothir's land is
undecided. It would certainly appear to be
technically a trespass.
c. The entry need not be actual, it may be con-
structive, e.g., though the public have the
right of passing along the highway, so soon
as they loiter thereon for a wrongful purpose
they commit a trespass against the owners
of the land adjoining the highway.
Harrison v. Duke of Rutland.
Hickman v. Maisey.
I. By remaining on the land longer than one has a
right to do.
But note that a person who has been in full
possession of land (e.g., a lessee) and who re-
mains in possession after his right thereto 'has
ceased does not become, ipso [atco, a itrespasser
-he becomes .atenant at sufferance. But upon
a refusal to give up the land after, its demand he
then becomes a trespasser.
III. By placing things upon the lgnd.
.a. The Act must be direct. If, for example,
November, 1924 THE LAW COACH 89

briclis fall from a chimney on to another's

lnd this-is nuisance, not. trespass.
b. Gregory v. Piper aftords an illustration of this
form of trespass.-
B. Trespass is actionable per se, so actual damage need not
be proved.
C. Trespass is to. a certair extent based, on principles of
absolute liability, therefore no wrongful intention or'
negligence need be proved.
1. Thus inevitable mistake is no excuse, e.g.., -that.
A by mistake thought thQolan, was .his own and
that he had a right there.
11. But when the- entry is 'involuntary and not due
to negligence there is probably no trespass', eg.,
where a runaway horse carries the rider on to
anofher's land' -This is" -a case. of inevitable
accident.
3. Plaintiff.Must Prove.
A. That he was in possession.
I. Possession need not be actual, it may be con-
structive.
It. Constrictive possession includes possession by a
servant or agent or an immediate right-to obtain
possession not yet actually enjoyed.
By the doctrine of " trespass by relation"
he who has a right to inimediate,Possession, upon
entry is. deemed to have been in. actual posses-
tiRi -ever since the accrualq of his right of entry,
and may consequently sue for any trespass com-
mitted since that moment.
III. The important point iii that only a possessor
actual or constructive may bring an action.
Not a landlQrd when his tenant is in posses-
sion. He. may, however, sue for damage done to
his reversionary interest,' if any
4. Defences.
A. Leave and license of the plaintiff himself. A mere
licence to enter upon. one's land- maket it lawful con-
duct to enter thereon instead of-. being a trespass. •
I. At Common Law a. licence was revocable at the
will of the licensor "whether -it was granted for
valuable consideration or not. Therefore, upon
its revocation it was no defence to plead the
licence to an action of. trespass. Immediately
upon its revocation the party on the land became
a trespasser. if he did. not leave the land with all
due speed. •
a. This is known as the rule in Wood v.
 Are YOU Buying.
a Motor Car?
If so make. your decision NOW to get in touch
with GNAPP immediately. No matter what your
requirements (from a small runabout to a Rolls-
Royce). Your enquiry will receive his most careful
and prompt attention. The car he advises you to
buy will be the one best suited for its purpose
irrespective of price. His service costs you: nothing.
You pay London's lowest price, and his experience
of twenty years in meeting the requirements of
motorists in all parts of the wob'ld is at your service.

Any make of Car supplied at

Lowest London Prices.

G. CECIL GNAPP & Co.,

4, PICKERING PLACE, No. 3 St. JAMES'S St.,
London, S.W. 1.
Telephone Regent 1180. Telegrams ESSERENDIB.
Proprietor G. CECIL GNAPP, A.M.IA.E.
late Special Suwritendewt in India for Rolls-Royce, Ltd.

GNAPP
, November, 19"24 N THE JAW COACH

Leadbitter.
b. Of course, the revocation of a licence, if
granted for valuable consideration
would give rise to an action for damages
for breach of contract.
c. And a licence, if coupled with an interests
is.irrevocable; e.g., A sells to. B timber
on his land and B is to fetch it away.
II.Since the fusion of law and equity under the
Judicature Acts the Court of Appeal decided that
a licence granted for valuable consideration could
not be revoked because the contract was one of
which equity would grant specific performance.
a. The case is Hurst v. Picture Theatres,
Ltd.
b. It would seem that Wood -v. Leadbitter
is no longer- the law unless perhaps a
case might arise which would .not be
specifically enforceable in equity, though
the licence was based on consideration.
Then, perhaps, the old rule would still
apply.
B. Justification by the authority of law.
.I.Cases under this head differ from " leave and
licence " in that where. the justification alleged
is some right or authority conferred by the law
itself, any abuse of such right makes the party a.
trespasser ab initio, the subsequent misconduct
acts retrospectively and makes the original legal
entry unlawful.
a However, to make the doctrine of "'Trespass
ab initio " apply, two conditions. must be present:
i. The authority to enter must be conferred
by the law.
ii. The abuse complained of most consist in
some act of inisfeasance, not a mere
nonfeasance.
The Six Carpenters Case.
11. In the following cases an entry on land is justified
by law.
. ..The true owner may enter as against a
wrongful possessor.
i. At Common Law he might enter
forcibly, but the Statute 5 Richard
II. now nmakes a forcible entiry
criminal offence.
ii: Though the true owner may be liable
criminally if he-enters forcibly, he is
 THE LAW COACH No%-eiiihei 19'24

not liable for trespass in a civil

action, and once he has entered he
mAy eject anyone who opposes his
entry. (Hemmings v. Stoke Poges
Golf Club.)
b. Entry to abate a nuisance.
c. Sometimes the owner of chattels may be
justified to enter to retake them forcibly.
d. Landlord or his agents may enter to levy
a distress.
o. In execution of legal process. Though in
general " a. man's house is his castle,"
it may be broken into by officers
of the law in execution of legal process.

QUASI-CONTRACTUAL OBLIGATIONS.
1. Obligations in English law may he divided into three
classes: (1) Delictual, (2) Contractual, and (3) Quasi-contractual,
and in order to understand the nature of quasi-contracts, it is
necessary for us to examine the nature and history of delicts and
contracts.
2. Any wrongful act, the commission of which gives rise to
an action, is a delict. In English law we use the expression
" tort." But our English torts are the delicts which arose in
the Common Law Courts. There are a few other miscellaneous
wrongs, which though they are delictual are not tortious, as they
are developed in Courts other than Courts of Common Law.
-In the Court of Chancery we find breach of trust and commis-
sion of waste both remedied. Collisions at sea had their remedy
in the Court of Admiralty. It is therefore apparent that if we
add to our list of torts those wrongs which were recognised and
remedied in Chancery and Admiralty, we have a full list' of
delicts in English law. We must now turn to contracts.
8. In early law there is little distinction between contract
•and tort. Contract springs from tort. If A and B made a
contract and A broke his part in the bargain he had undoubtedly
committed a wrongful act towards B. Breach of contract was
tortious in its nature. How is it, then, that breach of contract
is now so independent of tort? - The answer is that in time the
law began .to take notice of the agreement of the parties, and
did not lay such stress on the breach of the agreement as it did
in earlier days. The important thing in rmodern times is the
making of an agreement or contract, whereas in the past it was
the injury caiired" to the plaintiff by the breach of the agree-
ment. We must dtiet,. however, lose sight of this very important
fact, that in ely "times breach of contract was tortious.