Trespass to Land Flashcards
(35 cards)
1.1. What is ‘trespass’?
3 forms of trespass:
1) Trespass to the person
2) Trespass to land and,
3) Trespass to goods
1.2 What is trespass to land?
1.2.1. Definition
1.2.2 Differences between trespass to land & private nuisance
1.2.1. Definition
-‘Any direct interference with land in the possession of another’
(Deakin & Adams)
-A ‘direct and unjustifiable interference with the possession of land’
(Steele)
TORT CONCERNED WITH THE PROTECTION OF PROPERTY RIGHTS
1.2.2 Differences between trespass to land & private nuisance
Private nuisance
-Protects against the Interference with the use and enjoyment of land
-Necessity of a damage?
—-yes
Trespass to land
-Protects against the interference with the possession of land itself
-Necessity of a damage?
—-no
- Elements of the tort
2.1. The claim must involve ‘land’
2.2. The claimant must be ‘in possession’ of the land
2.3. The interference must be ‘direct and physical’
2.4. The interference must be intentional
2.1. The claim must involve land
2.1.1. Airspace as ‘land’
2.1.2. Subsoil as ‘land’
2.1.1. Airspace as land
Intrusion of airspace could amount to trespass.
-Kelsen v. Imperial Tobacco Co (overhanging advertising sign)
-Woolerton & Wilson v. Richard Costain Ltd (booms of crane)
Bernstein v. Skyviews and General Ltd
Distinction drawn between aircraft & overhanging structures
(aircraft – no trespass)
The problem is to balance the rights of an owner to enjoy the use of his land against the rights of thegeneralpublic to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public.’
Anchor Brewhouse Developments v. Berkley House Ltd
Distinction drawn between aircraft & overhanging structures
(crane - trespass)
The tort of trespass represents an interference with possession or with the right to possession. A landowner is entitled, as an attribute of his ownership of the land, to place structures on his land and thereby to reduce into actual possession the air space above his land. If an adjoining owner places a structure on his (the adjoining owner’s) land that overhangs his neighbour’s land, he thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is trespass. It does not depend upon any balancing of rights.
The difficulties posed by the overflying aircraft or balloons, bullets or missiles seems to me to be wholly separate from the problem which arises where there is invasion of air space by a structure placed or standing upon the land of a neighbour.
2.1.2. Subsoil as ‘land’
Bocardo A v. Star Energy UK Onshore Ltd
-The better view, as the Court of Appeal recognised [2010] Ch 100 , para 59, is to hold that the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of it by a conveyance, at common law or by statute to someone else. (…) There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the opposite conclusion.
2.2. The claimant must be ‘in possession’ of the land
2.2.1. When does a person acquire ‘possession’?
2.2.2. Proving possession
2.2.1 When does a person acquire ‘possession’?
-‘Exclusive possession’ – the right to exclude others from the land
Roberts v. Swangrove Estates Ltd
-‘a person does not acquire possession until he obtains exclusive enjoyment; what amounts to exclusive enjoyment (…) depends on the nature of the property’
-Ownership not necessary
-Being physically on land/have control over land not sufficient.
2.2.2. Proving possession
Exclusive enjoyment of land possession
-Legal title not necessary (‘Any possession is a legal possession against a wrongdoer’ Graham v. Peat
-But evidence of ownership prima facie evidence of possession
-Doctrine of ‘trespass by relation’
-Examples of evidence of enjoyment of the land
2.3. The interference must be ‘direct and physical’
2.3.1. Entry on land
2.3.2 Remaining on land
2.3.3. Going beyond what is permitted while on someone’s land
2.3.4. Putting or placing objects on land
2.3.1. Entry on land
-Crossing a boundary on to land
—Entick v. Carington (‘By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon another’s ground without his licence.’)
-Abuse of right of entry (often highways)
—Hickman v. Maisey (‘Unless what the defendant did comes within the ordinary and reasonable use of a highway as such and is therefore lawful, it is clear that it would be a trespass.’ - trespass)
—Director of Public Prosecutions v. Jones (what is ordinary and reasonable use? Peaceful assembly on highway - No trespass)
2.3.2. Remaining on land
What about tenants who stay on the land at the end of the tenancy?
Hey v. Moorhouse (1839) – trespass if
(1) The tenant continues to live on the land after the period of tenancy expires, AND
(2) Demand has been made to vacate the land.
2.3.3. Going beyond what is permitted while on someone’s land
Refer back to lecture on occupiers’ liability
Examples:
-Dinner guests taking a peek into the bedroom without permission,
-Shoppers going past ‘no entry’ sign at the back of a shop
2.3.4. Putting or placing objects on land
Gregory v Piper
-‘If a single stone had been put against the wall it would have been sufficient [to constitute trespass].’ (Per Parke J. (p.221))
‘Continuing trespass’ - Holmes v. Wilson
-The defendants built buttresses on the claimant’s land to support a road.
-The buttresses constituted a trespass and a nuisance.
-The claimant sued and won damages, but the defendants did not remove the buttresses.
-Several years later, the claimant sued again for the same continuing nuisance.
Examples:
-Throwing things on someone’s land (Rigby v. CC Northamptonshire)
-Deliberately discharging water into the flowing watercourse of another (British Waterways Board v. Seven Trent Water).
-Allowing cattle to stray on someone’s land or inducing animals to enter into someone else’s land (League against Cruel Sports v. Scott)
2.4. The interference must be intentional
Stone v Smith
‘That it is the trespasse of the party that carryed the defendant upon the land, and not the trespasse of the defendant: as he that drives my cattel into another mans land is the trespassor against him, and not I who am owner of the cattell.’ (Per Roll Instice)
-The act that constitute the trespass that must be intentional, not the trespass itself (Conway v George Wimpey & Co – lorry driver).
2.4. The interference must be intentional
Can trespass be committed negligently?
League against Cruel Sports v. Scott
‘The master’s intention, or the intention of those servants or agents or followers of the hunt for whose conduct he is responsible, has to be inferred from his or their conduct in all the circumstances of the case. For example, whether he or they stood by and allowed hounds which were plainly about to enter prohibited land to do so, or allowed hounds which were plainly on the land to remain there; or whether, by making appropriate sounds vocally or on the horn, he encouraged hounds to go on to or to remain on such land.
Further, if it is virtually impossible, whatever precautions are taken, to prevent hounds from entering league land, such as Pitleigh for example, yet the master knowing that to be the case, nevertheless persists in hunting in its vicinity, with the result that hounds frequently trespass on the land, then the inference might well be drawn that his indifference to the risk of trespass amounted to an intention that hounds should trespass on the land.’ (p. 252)
Facts:
The League Against Cruel Sports, an animal welfare group, owned land and wanted to prevent fox hunting on it.
The defendants, members of a local hunt, repeatedly allowed their hounds to enter the League’s land during hunts.
They claimed the trespass was unintentional, as the dogs weren’t deliberately directed onto the land.
Held:
The Court held that there was trespass.
Even if the intrusion by the dogs was not intentional, it was reasonably foreseeable, and the hunt organizers did not take adequate steps to prevent it.
- Defences
3.1. Licence
3.2. Justification by law
3.3. Necessity
3.1. Licence
-No trespass if D has permission to act – whether express or implied – from the party in possession.
-Subject to 2 limitations:
1)Restriction by express/implied terms
2)Withdrawal/revocation of permission BUT not always possible
—-License to take things from the land
—-Contractual license
3.2. Justification by law
3.2.1. Entry under statute
3.2.2. Abuse of authority: trespass ab initio
3.2.1. Entry under statute
Powers to enter & search the premises
- No general common law power to enter and search premises without consent or warrant
-Statutory powers under s. 17 PACE 1984 (arresting P for indictable offence/offence listed in s 17/save life, limbs, property),
-Statutory power under s. 18 PACE 1984 (after an arrest for indictable offence & search evidence)
-Power to enter premises to prevent a breach of peace
Limitations to the powers to enter & search the premises
-PACE 1984, s.17(2) – lays down requirements to enable police officers to enter & search premises under s. 17(1)
-One exception: no limitation to the power to enter and search the premises in order to save limbs or life OR to prevent serious damage to property.
