Trespass Flashcards
What trespass to land aim for?
Trespass to land protects a claimant’s right to keep other people off their land. The idea is that we all have a basic right to enjoy our own property without interference from anyone else, and to exclude people if we wish to. It can be committed by entering land without permission, regardless of whether damage is done (actionable per se).
What are the elements the tort?
1) Land
2) Posession
3) Direct interference
4) Intention
Land element
Firstly, land includes the ground itself, things under it, buildings fixed on the surface, and airspace above, as needed for the use and enjoyment of the land.
Star Energy v Bocardo
It was held that trespass can arise from tunnelling under land in possession of another, even though neither end is on the land.
The Civil Aviation Act 1982 provides that there is no trespass where civilian aircraft fly over at a reasonable height. But it imposes strict liability for damage caused by taking off or landing, or by anything falling from them.
Possession element
Secondly, the claimant need not own the land, but must be in possession of it. Possession here means the right to exclude others from the land. It must be both immediate and exclusive.
Direct Interference element
Thirdly, the interference must be direct and physical. It can include entering land, where even the slightest crossing of a boundary may be enough for liability. Also, a person who has permission to enter land, but does something which goes beyond what is allowed, may be liable. Abuse of right of entry also applies where someone is allowed onto land for a certain purpose and then does something unrelated to that purpose. Remaining on land even when the permission expires, or after being asked to leave is also trespass. So is placing things on land. It is not necessary that boundaries be crossed, as long as the thing has some physical contact with the property.
League Against Cruel Sports v Scott
On seven occasions, the defendant’s hounds strayed onto the clamaint’s deer sanctuaries, and the court granted an injunction. Persistent hunting near the land showed an intention to trespass.
Intention element
To be liable for trespass, the defendant must have intended to do action that amounted to the trespass. This is quite clear due to the need for a direct action. The defendant only has to have intended the action they did, they do not have to intend to commit a trespass. Nor do they need to have any intention to cause problems for the claimant, or have any hostile purpose.
Basely v Clarkson
The defendant was cutting his grass, and without realising, went over to his neighbour’s land. This was held to be trespass, as he intended to cut grass.
By contrast, if someone pushes you onto land, you would not be committing trespass.
League Against Cruel Sports v Scott suggests that trespass to land can be committed negligently. Where a person trespasses accidentally, either being unaware that the land is private, or mistakenly believing it was theirs, liability is still incurred. However, it is established that where a defendant unintentionally enters land adjoining the highway, the claimant must prove negligence (River Wear Commissioners v Adamson).
What is treaspass on highway?
The owners of the soil on which a highway rests possess it for purposes of trespass. There is no trespass where a person uses it to get from one place to another, or for anything which is incidental to that. It was traditionally thought that anyone who uses the highway for any other purpose becomes a trespasser.
Hickman v Maisey
The defendant on the highway was found to have trespassed when he walked up and down, watching and taking notes on the horses.
But DPP v Jones changed this law.
The defendants were demonstrating at the side of the road. None of them was behaving violently, and nobody else on the highway was obstructed. Lord Irvine held that the traditional approach was outdated, and the use of the public highway for any reasonable purpose, like peaceful assembly, is not trespass.
What is Continuing trepass
Continuing trespass will occur when a person fails to remove an object that has been unlawfully placed on the land. There is a new claim for each day that the trespass continues.
Holmes v Wilson
The defendant’s building buttresses was held to be trespass. But they did not take them away, and so were found liable in a subsequent action for trespass
What is trespass in relation?
Trespass by relation is where a person who has a right to take immediate possession of the land, and enters it in order to exercise that right, is regarded as having been in possession ever since the right of entry accrued. They may sue for trespass committed since this right accrued.
What is Trespass AB initio?
Trespass ab initio is where a person’s entry onto land is permitted by statute or common law, rather than merely by permission of the occupier, and the person does a wrongful act while there, that act makes the original entry a trespass, and not just the wrongful act.
The Six Carpenters
Where the carpenters refused to pay. The court held that they had not committed an act, but merely an omission.
Cinnamond v British Airports Authority
The courts held that it was lawful to drop off the passengers in the airport, but they had no legal right to loiter about in hope of picking up passengers. This was trespass ab initio.
What are the defences
- License
Defences to trespass includes, firstly, license. Where a person gives someone permission, express, or implied, to be on their land, there is no trespass, so long as the boundaries are not exceeded. Once a license is revoked, the person that was granted must be allowed a reasonable time in which to leave and remove their goods; after that, they become a trespasser. - Statutory justification
Secondly, people sometimes avoid liability because the law provides some justification for their trespass, such as the Police and Criminal Evidence Act 1984. - Jus tertii
Thirdly, jus tertii is given to a defendant who can show that the land rightfully belongs neither to the person in possession nor to the person claiming the land, but to a third person. - Necessity
Fourth, necessity is also a defence.
Sample cases under the defences
Esso Petroleum Co v Southport Corporation
Where a sea captain was forced to discharge oil to the shoreline, in order to prevent his ship breaking up.
Rigby v Chief Constable of Northamptonshire
The defendant relied on necessity after causing a fire by releasing CS gas into a shop to eject a dangerous psychopath.
Monsanto plc v Tilly
The defendant entered land where genetically modified crops were grown and uprooted them. They claimed that it was essential to protect public health and the environment, but the court refused. The action was merely a symbolic gesture to attract publicity
What the remedies?
- Damages
- Injunction
- Re-entry
Where a rightful occupier was excluded from the land, he has the right to re-enter the land. - Ejectment
An action for the recovery of land, or ejectment, allows a person who has lost possession of their land to get possession back. - Mesne profits
Mesne profits allow the claimant to claim profits taken by the defendant during occupancy, damages for deterioration and costs of regaining possession. - Distress damage feasant
Distress damage feasant allows the claimant to keep an object left on their land until the damage has been paid for.
