Head 25: 4 Flashcards
(18 cards)
What is trespass?
Passage through another’s land without consent is known as trespass. Trespass can be carried out by persons, by animals or (if temporary) by things
Brown v Lee Constructions Ltd 1977
This involved a crane jib swinging over the petitioner’s land. This was going to be happening for several months. The petitioner was awarded an interdict since it constituted trespass.
Does it matter if the trespass is trivial?
If the trespass is trivial this does not excuse the trespass, but it may affect the remedies
4 defences to trespass?
1) Consent (e.g. postman is implied)
2) Exercise of a right (e.g. servitude, public right of way etc, Land Reform (S) Act 2003
3) Judicial warrant
4) Emergency
Three main types of remedies for trespass?
1) Interdict
2) Self held
3) Damages
How can you interdict someone for trespass?
You need to know the name and address of the trespasser so it is really only useful against persistent trespassers (e.g. your neighbour taking a short cut).
What type of remedy is interdict for trespass?
Interdict is a discretionary remedy
⁃ The court is unlikely to grant it if there is no reasonable likelihood of future trespass.
Also since it is a discretionary remedy the court will look to you having pursued other avenues before having rushed to court such as warning off the trespasser.
In practice the best evidence of future trespass if past trespass
Inverurie Magistrates v Sorrie 1956
The defender merely asserted that he had the right to exercise racehorses over the petitioner’s land - he never actually did it.
⁃ On this basis interdict for trespass against the defender was refused.
If you opt for self help in relation to trespass…
But if you are too enthusiastic with your self-held then this may lead to a civil or criminal wrong.
⁃So self help could involve high walls but not man-traps or mines (and you are subject to the rules in the Occupiers Liability Act and for guard dogs the Guard Dogs Act 1975 (e.g. notices that there is a guard dog)
In dealing with trespass yourself you can use…
Reasonable force for trespass into a house or in cases of trespass on land where the trespass is violent. But if it is a peaceful trespasser on open land you must be more cautious - you can e.g. escort them off the land.
Bell v Shand 1870
15 year old boy who appeared to be poaching was dragged for some distance by the scruff of the neck. It was held that this was reasonable force. But this was decided in 1870 so probably outdated.
Trespass is a…. so damage resulting from trespass is…
Delict
Recoverable
What type of liability is there in relation to delictual trespass actions?
Fault based (intentional or negligent) - not strict.
Harvie v Turner 1915
Two neighbouring fields owned by two different individuals. One field was full of cows, the other had a bull in it. The owner of the cows repeatedly said to the owner of the bull that he didn’t think it was wise that the bull be kept in that field.
The bull got over the fence and ‘served the cows’ creating unsuitable crossbreeds. The owner of the cows sued for damages and succeeded because the loss was foreseeable.
Will the court grant interdict in resect of straying animals?
The court will not grant interdict in respect of straying animals except for those which are easily confined (e.g. domestic fowl) and the view of the court is that it is for the complainer to fence his or her land rather than interdict.
Winans v Macae 1885
The pursuer sought to interdict the defender from “putting any lamb, lambs, sheep, cattle, or other bestial” on the pursuer’s lands. The pursuer was a tenant of 200,000 acres of unfenced rough grazing. The defender was a shoemaker who inhabited a cottage adjacent to the pursuer’s land. The only animal that the defender had was a pet lamb.
Interdict was refused - the case also makes the point that interdict will not be granted for something trivial.
Forest Property Trust v Lindsay 1998
An interim interdict had been awarded against the defender ordering her to prevent her sheep straying onto her neighbours land.
The defender sought recall of the interim interdict on a number of grounds. She argued that there was no obligation at common law to heard sheep and it was up to her neighbour to erect fences. She argued that normal farming practice was that sheep policed their own boundary. And she submitted she followed normal farming practice with regard to straying - she tried to retrieve the animals, and that employing a shepherd was not economically feasible.
The court accepted these arguments and recalled the interim interdict.
Are there criminal sanctions for trespass?
In general no, but two relavant provisions…
Trespass (Scotland) Act 1865
⁃ You can’t permanently encamp on private property.
Wildlife and Natural Environment (Scotland) Act 2011
⁃ Under this Act poaching is a criminal offence.
