Law of Torts (1)

Trespass to Land

Professor ’Gbenga Bamodu

 Introduction
 ‘Trespass to land’ relates to
 intentional and direct interference
 with a claimant’s right(s)
 in relation to property
 The tort is principally concerned to protect
 the rights of the claimant
 to ‘possession’ of property
 ‘Property’ refers to interests in land, and
 the related enjoyment of the land, thus, in this sense,
 ‘property’ includes physical land, and
 a construction or dwelling on the land, and also
 the subsoil and airspace of the land
 Elements of the Tort of Trespass to Land
 Trespass to land is a
 direct, intentional, and unjustified interference with
 another person’s right,
 in relation to possession of property
 We shall therefore be examining further the following elements:
 Direct interference – and the different ways in which the tort may occur
 Intention – i.e. the mental element of the tort
 Unjustifiable interference – the absence of justification for the interference
 We shall relate this to defences against the tort
 Note: Trespass to land is actionable per se
 Remember this means that the claimant does not need to prove harm or damage
 Direct Interference
 The defendant must have done something
 that affects the claimant’s property, and
 his right to possession
 Trespass to land is not normally committed by omission,
 i.e. failing to do something,
 but by active commission or action
 Distinguish between, for example
 the defendant throws a fruit onto the claimant’s land; and
 the defendant leaves a tree on his own land grow so much
 that some of the branches overhang onto the claimant’s property
 Ways in Which Interference May Occur
 Entry onto another person’s property, e.g.
 walking onto a land
 entering someone’s house
 putting a hand through a window
 Remaining on another person’s property beyond permission, e.g.
 staying on the property after being asked to leave
 Going beyond the area or extent permitted, e.g.
 going into ‘No Entry’ section, or
 if only allowed in the living room, going into the bedroom
 Putting an object or something on someone’s property, e.g.
 throwing something onto another person’s land
 placing something on another person’s property
 Examples: Trespass by Entry onto Property
 Entick v Carrington [1765]
 Some officers broke into the claimant’s house and seized documents
 they claimed they were authorised under a warrant
 issued by the Secretary of State
 held: the Secretary of State did not have authority to issue such a warrant; the officers
were liable in trespass
 Director of Public Prosecutions v Jones [1999]
 defendants were on a public highway making a protest at Stonehenge
 when police officers asked them to move, they refused;
 they were arrested for taking part in a ‘trespassory assembly’
 held: provided that activities are reasonable, do not involve committing a nuisance and
are not an unreasonable obstruction of the highway,
 the activities should not amount to trespass
 Trespass by Placing an Object on Property
 League Against Cruel Sports v Scott [1986]
 The defendant (master of a hunt) allowed hunting dogs
 to stray onto the property of the claimants
 which had been bought to provide a sanctuary for wild deer
 held: this amounted to trespass.
 Note: if the object is not removed and remains on the property,
 the claimant may be able to bring several actions for trespass
 as long as the item remains on the property
 This is known as continuing trespass!
 Holmes v Wilson (1839) 10
 The highways authorities erected buttresses to support a road that was sinking
 the buttresses trespassed on the claimant’s land;
 the claimant sued for trespass and won
 the buttresses were not removed;
 so, the claimant sued again and won again
 Trespass Ab Initio
 ‘Ab initio’ means ‘from the beginning’
 Trespass ab initio applies in a situation where
 the defendant had entered onto property initially by permission
 under statute or the common law
 but not simply by the permission of the claimant;
 if, after the initial lawful entry,
 the defendant does something that is not permitted,
 then his entry is deemed to have been unlawful and a trespass
 from the beginning
 Trespass ab initio can be raised in different circumstances
 but it is more relevant in situations
 involving Police entering onto someone’s property
 Trespass Ab Initio
 To be liable for trespass ab initio,
 the defendant must have done an act that is unjustified
 not just made an omission
 after the initial lawful entry
 The Six Carpenters Case (1610)
 Six carpenters entered a tavern
 they had a lawful right to enter;
 they were served with wine and they paid
 they ordered bread and more wine but refused to pay for these;
 held: the only reason that they were not to be regarded as trespassers ab initio
 was that they had not committed an act,
 but rather made an omission by refusing to pay
 Trespass Ab Initio
 Cinnamond v British Airports Authority [1980]
 The defendant taxi drivers lawfully drove to the airport to drop off
passengers
 they however also waited to tout for passengers to drive away from the
airport
 the airport authorities had an official taxi rank for other taxis
 the defendant taxi drivers therefore deprived the official taxis of business
 they also charged exorbitant prices and sometimes treated passengers badly
 the airport authorities sued them for trespass
 held: the defendant taxi drivers were liable for trespass ab initio
 Trespass Ab Initio
 The courts seem reluctant to use Trespass ab initio in relation to Police conduct
after initially lawful entry
 Elias v Pasmore [1934]
 Police officers lawfully entered the property of H
 whilst there, they lawfully seized some documents
 that were used in the trials of H and E
 they also seized some other documents unlawfully
 held: the police officers were not trespassers ab initio in respect of the
property
 despite the unlawful seizure of documents
 they only committed trespass to goods
 in relation to the documents seized unlawfully
 Trespass Ab Initio
 Reluctance to use Trespass ab initio in relation to Police Conduct
 Chic Fashions (West Wales) Ltd v Jones [1967]
 Police officers entered the property of the claimant with a warrant
 to search for particular stolen clothes
 they did not find the clothes mentioned in the warrant,
 but they found and seized other clothes that they believed to be stolen
 though they returned them after an explanation by the claimant
 claimant sued for trespass
 held: the officers were not liable for trespass ab initio
Trespass to the Ground Beneath Another Person’s Property
 Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010]
 When drilling for oil, the defendants sank wells
 which entered the substrata below the claimant’s property
 they did not obtain the claimant’s permission
 the claimant sued for trespass
 held:
 though there must be some point below the surface
 at which the concept of the strata belonging to anybody would be an absurdity
 that was not so on the facts of this case, and
 the claimant was entitled to succeed for trespass to land
 Note: the first instance court awarded the claimant about £7,000,000 damages; but
the two appellate courts said damages of no more than only £1,000 were due.
 Can you find out why by reading the case?
 Trespass to the Space Above Another Person’s Property
 Kelsen v Imperial Tobacco Co [1957]
 An advertisement sign put up by the defendant
 projected about 8 inches out
 into an area that was above the claimant’s property – a one-storey shop;
 held: this amounted to trespass
 Laiqat v Majid & Ors [2005]
 The defendants installed an extractor fan on their own property
 it protruded through the side of the wall separating the claimant's property
 from the defendants' property;
 it was partially above the rear yard of the claimant's property
 it projected over the claimant’s property by about 75 centimetres at a height of 4.5 metres
 held: the defendants were liable in trespass
 Per Silber J, “if a defendant interferes with a claimant's airspace, this amounts to trespass except
that this conduct would not constitute trespass if the interference were at such great height -
such as by high flying aircraft- that it does not interfere with the claimant's airspace.”
 Trespass to the Space Above Another Person’s Property
 Anchor Brewhouse Developments etc v Berkley House etc Ltd (1987)
 The defendants left tall cranes on a building site
 when the cranes were not in use,
 their booms were left to swing with the wind
 to prevent the cranes from falling over;
 but they swung over the space above the adjoining property of the claimant
 held: this amounted to trespass.
 Compare: Lord Bernstein of Leigh v Skyviews & General Ltd [1978]
 The defendant flew aircraft over the claimant’s property and took photos of the property
 the defendant then offered to sell the photos to the claimant;
 the claimant sued for trespass;
 held: the defendant was not liable for trespass
 flying over the claimant’s property in the circumstances of the case
 did not infringe the claimant’s right to airspace
 Intention: The Mental Element in Trespass to Land
 Trespass to land is an intentional tort
 The defendant must intend to do the action that affects the claimant’s right(s)
 not necessarily that the defendant actually intended to trespass, but
 that the defendant intended to do the action
 which amounts to interference
 Examples:
 A person who walks deliberately and knowingly onto another person’s land
 = has the required intention
 A person who walks on another person’s land wrongly thinking it is public property
 = has the required intention
 A person who walks on another person’s land but genuinely believing it is his own
 = has the required intention
 A person who is pushed onto another person’s land
 = does NOT have the required intention
 Intention: The Mental Element in Trespass to Land
 Smith v Stone (1647)
 The defendant was forcibly carried by other people
 onto the claimant’s property;
 held: the trespass is not the trespass of the defendant,
 but that of the people who carried him onto the land.
 Gilbert v Stone (1647)
 The defendant was sued for going onto the claimant’s land and stealing a
horse
 he claimed that he was forced to enter the land and steal the horse
 by 12 men who threatened to kill him
 held: that the claim of the defendant was not a defence to the claimant’s
action
 Intention: The Mental Element in Trespass to Land
 Basely v Clarkson (1681)
 The defendant was mowing his lawn
 which was next to the claimant’s lawn
 he mistook the boundary,
 and mowed grass which was on the claimant’s lawn;
 held: the defendant was liable in trespass
 even though he thought he was mowing his own grass;
 the claimant was awarded 2 shillings
 Note: although trespass to land is an intentional tort,
 a case like Basely v Clarkson suggests that it can be committed accidentally or
carelessly;
 this suggests that trespass to land may even be possibly committed negligently
 Defences to an Action for Trespass to Land
 Permission or Licence:
 if the defendant can show that he has the permission of the defendant,
 or a licence from the defendant
 to enter or remain on the land,
 then he may be not be liable
 Lawful Justification:
 this is more more relevant in in relation to actions against Police etc
 if the authorities can show that the entry onto the property is under lawful authority
 then they may not be liable; Elias v Pasmore; Chic Fashions (West Wales) Ltd v Jones
 Necessity: if the defendant’s entry or interference was necessary
 e.g. for reasons of public or private safety
 and without negligence
 the defendant may be not be liable; see e.g. Cope v Sharp [1912]
 Jus Tertii (‘rights of a third party’):
 if the claimant is not entitled to possession,
 when the right actually belongs to a third party
 the defendant may not be liable
 Remedies for Trespass to Land
 Re-entry: a person who is entitled to possession may re-enter the property
 but this risks confrontation or even violence potentially
 Action for recovery of property or ‘ejectment’: a court action to eject a trespasser
 Mesne profits: an action to reclaim
 any profit that a trespasser might have made from the property
 during the period of the trespass
 Distress damage feasant: if an object placed on the claimant’s property causes damage
 the claimant may be able to retain the object until the damage is paid for
 Injunction: may be available and may be the most effective remedy,
 to stop interference of a continuing nature
 Damages: may be awarded to compensate the claimant for actual loss suffered,
 or nominally in a token sum to denote that trespass has been committed,
 even though no real harm has been done