Trespass To Land

Definition:

Unreasonable or deliberate interference with another’s possession of land. The trespass to

land is actionable per se where the plaintiff in trespass entitle, even though there is no actual
damage. Liability is therefore strict. The act that is considered trespass to land consists of
action where the defendant entering upon land in the possession of the plaintiff. He remains
in the plaintiff’s land and placing or projecting any object upon it in case without lawful
justification.

Haji Jaafar b Haji Hashim v Rohani bte Ab Latip [2006]

In this case, plaintiff was the registered owner of land that reside by eighth defendant with his
family in a house that built on the same land. One day, the house that reside by the defendant
demolished and replace by house under Projek Rakyat Termiskin. The project was conducted
by seven other defendant who were members of the Kampung Development and security
committee without the consent of plaintiff but with the permission of defendant. The issue
that arise in this case was trespass to land. The court held that the eighth defendant was mere
licensee and did not own the land or the demolished the house. He had no capacity give
consent to any party to enter and demolish house because he was no the right owner of the
land. In this case only plaintiff had right on the land because he was the registered owner.

There are two elements of trespass to land.

1. The mental state of the defendant

2. Interference

The mental state of the defendant

The defendant must have intention to do act alleged to be a trespass. Although if there is no
intention to trespass, there must be a voluntary act in entering land that is in the possession of
another.

Basely v Clarkson [1682]

In this case, the defendant mowed his own grass but accidentally mowed plaintiff’s grass
while doing so. The court held that the defendant liable as the act of mowing the grass was a
voluntary act where it done with intention

● An act done under mistake is not necessarily an involuntarily act. A mistaken action
may be a voluntary action therefore intentional.

Distinguished with

Smith v Stone [1647]

In this case, the defendant was carried by others onto the plaintiff land by violence and force.
The defendant had no intention to be voluntarily. However, there was trespass by people on to
the plaintiff land which are people who brought the defendant onto plaintiff’s land. The
plaintiff brought action against the defendant for trespass. The court held that the defendant
was not liable as it was involuntary trespass so it is not actionable. However, trespass happen
to the person who brought the defendant onto the plaintiff land.

● If the defendant enter into plaintiff’s land without his consent and is
involuntary-element of intention is not fulfilled.

Intention is also established when the defendant ought to have foreseen the trespass.

League Against Cruel Sports Ltd v Scott [1985]

This case shows that trespass can result from negligent failure to ensure dogs do not go onto
another’s land. The League Against Cruel Sports is anti-hunting and they also buy small
pockets of land and use them as nature reserves – this is to make areas that are safe for
animals and, also, the more land they buy they hope they can force out hunting. In this case,
there was a hunt going on and the dogs (used by the hunters) were going onto the League's
land. As a result, the League sued the hunt master who was responsible. The question was:
was the league master intentionally setting the dogs upon the land?

Held: The court said they could infer an intention to trespass from "the indifference to such
incursions while persisting to hunt near the claimant’s property". Thus, the defendant was
found guilty of trespass.

Trespass therefore occurs when:

1.There exists an intention to trespass

2.The act is done voluntarily

3.the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or
omission

2.Interference

The act that considered trespass to land consist of action where the defendant entering upon
land in the possession of the plaintiff. He remains in the plaintiff’s land and placing or
projecting any object upon it in case without lawful justification.

a. Entering land which is in the plaintiff’s possession

Trespass to highways

Kerajaan Negeri Selangor v Sagong Tasi [2005]

In this case, the plaintiffs-possessor’s houses and public building had been demolished
because of the act of construction by a company together with the Malaysian Highway
Authority. The court held that it was an actionable trespass which deserved to be punished as
opposed to being merely through monetary compensation.
Hickman v Maisey [1900]

In this case, the plaintiff train his horses on his land where there was a highway located in
front of the plaintiff’s land. The defendant used the highway in order to spy the plaintiff’s
horses. The court held that liable for trespass to land as he was not use the road for its
purposes. As a user the defendant only use to cross over to the side of the land not acts
unreasonably and unordinarily by spying the plaintiff.

b. Remaining on the plaintiff’s land

-Continuing trespass
-A licensee whose licence has been revoked or terminated also becomes a trespasser
an would be liable for damages if he continues to stay on the land.

Konskier v Goodman Ltd [1923]

In this case the plaintiff rented a house from his father. Before the tenancy, the father had
allowed the defendant builders, who were engaged to do some work on another house, to pull
down the chimney stack of the plaintiff’s house. They undertook to rebuild it. The defendants
had also promised to remove some debris as result of their repair work but failed to do so
although after 3 months. As result, the plaintiff facing some demage because there was a
heavy rained fall that cause the debris to be stuck at the plaintiff’s basement. The court held
that the defendant liable for not cleaning up the debris and said that it was continuing trespass
to fail remove an object once permission has ceased.

Cheah Kim Thong v Taro Kaur [1989]

In this case, the defendant’s house interfered onto the plaintiff’s land. The defendant relied on
the estoppel and consent on the grounds that this interfered was not a problem to the previous
owner. The defendant further contended that the plaintiff not suffered any damage from the
interference. The court held that the defendant had continuing trespass and therefore a fresh
cause of action arose from day to day. In trespass to land, the plaintiff did not need to prove
damages as the cause of action was actionable per se.

c) Entering or placing an object on the plaintiff’s land

K Mahunaran v Osmond Chiang Siang Kuan [1996]

In this case, the defendant was replaced the plaintiff wall with new one. The court held that
replaced an original part wall and building a new one in its place that reaches the ceiling of a
car porch constitutes to trespass. It is because the defendant action was done without the
consent of the owner of the adjoining property even though approval has been obtained from
the local authority.
d) Interference to airspace

-include airspace above the land.

Lord Bernstein of Leigh v Skyviews& General Ltd [1977]

In this case, the defendant who was in the business of taking pictures to property from the air,
took a picture of the plaintiff’s premises. The plaintiff sued for trespass. Griffiths J held that
there was no trespass. The right of a landowner to the airspace above of his land is limited.

Owner of land has certain rights in the air space above his land –e.gwire placed over one’s
land –Gifford v Dent –Kelsenv Imperial Tobacco –signs projected over Pfsproperty

2.Does height matter? –No support that a landowner’s rights in the air space above his
property extend to an unlimited height –As long as the claimant can show that the intrusion
was at such height that it interfered with the ordinary use and enjoyment of property and the
structures erected on the property

Karuppanan s/o Chellapon Balakrishnen s/o Subbon [1994]

The plaintiff prayed to court for interlocutory mandatory injunction against the defendant
who the owner of adjacent land to remove protrusions and all other encroachments
encroaching upon his land. These protrusions were to the side-windows of the building
owned by the defendant and were built by the defendant’s predecessor in title. The court held
that the defendant was liable for trespass to land and airspace who entitle to a interlocutory
mandatory injunction to have the trespass to removed not withstanding that the source of
trespass had already been existence before the new owner came to own the land and whether
he knew or had notice of it or not.

Trespass ab initio (from the beginning)

Six Carpenter’s case (1610)

In this case, the defendant enters onto the plaintiff’s land under the authority of the law where
he had a licence that granted to him. However, he abuse this right entry, he will be treated as a
trespasser ab initio as though he had trespassed form the beginning even though his wrongful
act was done innocently. When is given by the party and he abuses it, he must be punished
for his abuse but shall not be a trespass ab initio .

Principle was illustrated in

Cinnamond v British Airports Authority [1980]

The defendant who were six mini cab drivers had been prosecuted on numerous occasionby
the British Airport Authority for loitering and touting for passengers at airport. In holding, the
airport authority had aright to prohibited the drivers access to the airport. The court held that
the drivers abused the authority given to them by the law by hanging about and toting. So
they become trespassers from the beginning and can be turned out.