Tort II- Trespass to Land (English Law) - Part 1

Bachelor of Law Tort Law II LAW61204 Dr Mogana Sunthari Subramaniam Taylor’s Law School Trespass to Land  OUTLINE  Definition of Trespass to Land  Elements of Trespass  Who can bring an action in trespass to land.  What types of incursion amount to trespass ?  Defences...

Bachelor of Law Tort Law II LAW61204 Dr Mogana Sunthari Subramaniam Taylor’s Law School Trespass to Land  OUTLINE  Definition of Trespass to Land  Elements of Trespass  Who can bring an action in trespass to land.  What types of incursion amount to trespass ?  Defences  Remedies Trespass to Land Definition:  ‘Trespass to land…is constituted by unjustifiable interference with the possession of land’. (Winfield & Jolowicz ‘On Tort’).  “A trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another.” Bocardo SA v Star Energy UK Onshore 1 AC 380 (per Lord Hope):  ‘ A direct physical and unlawful interference with land which is in the possession of another person’  Unreasonable interference with another’s possession of land.  Interference with an owner’s rights to exclusive possession of real property. Trespass to Land It is a wrong against possession rather than ownership of the land. Like other trespasses the act complained of must be direct and ‘willed’: accident or negligence are not enough:  see Fowler v Lanning , Letang v Cooper , Wilson v Pringle. Aims of Trespass to Land The tort of trespassing protects the interest in the exclusive possession of land. Anyone who has an actual and exclusive possession of land can bring action for trespass as a Plaintiff; you do not necessarily have to own land to bring a claim in trespass – you just need to have a legal right to exclude others. Elements of Trespass Trespassing has two elements: 1. An actual interference with the right of exclusive possession (called the “entry element”) and 2. Intention. TRESPASS TO LAND Actionable per se - without having to prove damage. If there is any loss then damages are payable by the trespasser. Trespass to Land Trespass to land occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land. This tort is actionable per se without the need to prove damage. Trespass consists of:  entering directly upon land in the possession of another person, or  remaining on land in the possession of another person, or  placing or projecting any object on land in the possession of another person  Airspace  Subsoil  in each case without lawful justification. Entry includes entry on land, below or above the ground or the air space above the ground.  What is land? Land includes the actual soil/dirt, the structures/plants on it, the airspace above it and underground. Law of Property Act 1925 (LPA 1925 ) S.205 (1) (ix) ; “Land includes…….mines and minerals, whether or not held apart from the surface, buildings or parts of building (whether the division is horizontal , vertical or made in any other way…” Question: how deep does one’s property right extends? Interest Protected Whose interest is protected?  Registered proprietor is fully protected What interest is protected? Trespass to land protects possessory rights;  Right to exclude others from one’ property.  Right to exclusive possession. Possession v Ownership In the area of trespass to land, the law is mainly concerned with the protection of a person’s right to possession of land. It is not so much concerned with the protection of ownership of the land. Thus, the possessor, rather than the owner, of the land has the primary right to sue in trespass.  Q: Landlord & Tenant – who can sue? What is ownership? Ownership normally indicates that a person has:  the right to possession, or to actual physical control, of the relevant property.  It is a right which is superior to possession; the right to sell, or give away, the property in question or to leave it to others by will when the owner dies. For example, owners can grant a lease of their property or create a trust over it or mortgage it to the bank as security for a loan over something which is property.  It is the highest legal right with respect to private property that is recognised by a legal system. The claims of the State perhaps come first. The claims of the owner come second. What is possession?  Possession is the right to have something under your immediate control or use. Persons who are in possession might be able to enjoy their occupation of the land for some time but they will have problems in dealing with the land and creating recognised legal interests in the land. Where ownership is a matter of legal right, possession is a matter of fact.  Rights of ownership normally include the right to possession. However, that right to possession might be lessened by something the owner has done. He or she might have given away rights of possession in the property. Or, as a matter of fact, someone else might simply have assumed possession of the property with or without the owner’s knowledge.  Ownership is always legitimate or "legal". Possession might be either legitimate or illegitimate. But even when it is not legitimately gained, possession can give rise to certain legal rights and protections. Thus even a person who has "stolen" another person’s (the owner’s) property has certain rights, including rights in trespass. WHO CAN BRING AN ACTION IN TRESPASS TO LAND ? This tort developed to protect a person's possession of land, and so only a person who has exclusive possession of land may sue. Superior right of possession ?? WHO CAN BRING AN ACTION IN TRESPASS TO LAND ? Tenant and landlord A landlord of leased premises ? does not have exclusive Landlord – Trespass possession, nor does a lodger or a licensee. However, a tenant or ? subtenant does. Trespass is an injury to Squatter? possessory right WHO CAN BE SUED IN ACTION FOR TRESPASS TO LAND ? Trespassers ? Better legal title ? Protection from Eviction Act 1977. Definition Of Trespass To Land Robson v Hallett 2 AER 407 A police officer was invited into a house to pursue enquiries. The consent to his being there was withdrawn and he tried to leave. Before he could do so he was assaulted. The issue was whether or not at the time of the assault he was a lawful or unlawful visitor. Once permission is withdrawn a reasonable time must be allowed for the visitor to leave and Lord Diplock stated that ‘ provided he did so with reasonable expedition, he would not be a trespasser while he was doing so.’ Instances of Trespass The ways in which trespass may occur: 1. Entering upon land 2. Trespass to the airspace 3. Trespass to the ground beneath the surface 1. Entering Upon Land Walking onto land without permission, or refusing to leave when permission has been withdrawn, or throwing objects onto land are all example of trespass to land. For example, see Basely v Clarkson (1681) 3 Lev 37. Trespass? Trespass? 2. Trespass to the airspace  Trespass to airspace above the land can be committed. In Kelsen v Imperial Tobacco Co 2 QB 334, D committed trespass by allowing an advertising board to project eight inches into Pf’s property at ground level and another above ground level.  Note that s76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable. However, s76(2) confers a statutory right of action in respect of physical damage caused by aircraft, actionable without proof of negligence. 3. Trespass to Ground Beneath the Surface Bulli Coal Mining Co v Osborne AC 351 The Dfs mined from their land through to the Pf’s land. This was held to be trespass to the subsoil. Scenarios – Trespass to Land If someone comes onto another’s land without the permission of the person who has possession of that land, that is trespass. If that entry is by mistake, then it may be unintentional. If a person should have permission in order to enter onto the land but the permission is properly revoked, and that person then remains on the land without permission, that is a trespass. If someone throws some object onto land which is in the possession of another, then that is a trespass. Leaving the thrown object on the land is also a trespass, just as a person staying on the land without consent is a continuous trespass. If someone fires a gun and the bullet passes across my land, that is a trespass against my land. Firing across my land again is a second trespass. Elements of Trespass to Land 1. The intentional entry onto the land of another – Defendant’s intention 2. Interference  Entering Land in Plaintiff’s Possession  Remaining on Plaintiff’s Land  Placing a thing on Plaintiff’s Land  Interference with Airspace  Interference with Subsoil - Underground 1. Intention - Mental State Of The Defendant It is the “ intention” to enter the land. There must be a voluntary act by the defendant entering into the land possessed by another. What about ignorance/mistake?....unintentional?  Intention  Defendant must have intended to trespass on another’s land.  If no intention to trespass, there is no voluntary entry. Basely v Clarkson 3 Lev 37 The Defendant accidently moved the Plaintiff’s grass whilst moving his own. Defendant liable as the act of moving the grass was a voluntary act, therefore done with intention.  Intention (con’t) Mistaken action may amount to voluntary action and therefore intentional. Conway v George Wimpey 2 QB 266 Deliberate entry onto the land is sufficient. It is irrelevant that Defendant does not know that he is entering the Plaintiff’s land or he reasonably believes that the land is his.  The court held Claimant was a trespasser when he mounted the lorry and it was immaterial whether he knew he was one or not. Deliberate entry onto the land is sufficient.] Trespass will arise where a person crosses the property of another on reliance of the permission of a person who has no authority to give that permission.  Intention Intention is not fulfilled if the defendant’s entry onto the Plaintiff’s land is without his consent and is involuntary. Smith v Stone Style 65  The defendant had been deposited on the Plaintiff’s land by a gang of men. It was held that the defendant was not liable for trespass since he had not committed a voluntary act.  The Defendant was brought onto the Plaintiff’s land without his consent. No trespass because the entry was without his consent and involuntary.  The claimant has to sue the ones who brought the Plaintiff onto the Defendant’s land.  Compare to Gilbert v Stone Style 72  Intention Gilbert v Stone 82 ER 539 Defendant was threatened with injury if he didn’t go onto land and steal Plaintiff’s horse. Although the Defendant had been forced by threats to enter the Plaintiff’s land, he was held liable since his presence there was the result of his conscious act.  Duress is not a defence for trespass. Why?  Intention Intention is also established when the defendant ought to have foreseen the trespass. League Against Cruel Sports Ltd v Scott 2 AER 489 Plaintiff maintained deer sanctuaries. Hunting was prohibited on the grounds. The hounds from the local hunt had trespassed the Plaintiff’s land. It was held that where it can be foreseen that there is a real risk of any pack of hound entering or crossing land belonging to another, liability would be established. – The knowledge was equal to having intention. Animals Act 1971 – Wandering Animals Under the Animals Act 1971, landowners can Intention claim for damages for animals straying into their land.  Includes the right to sell the animals at market or public auction. 2. Interference Unreasonable interference – so unreasonable that the Plaintiff could not tolerate it anymore. What type of incursion amounts to trespass to land? a. Entering Land in Plaintiff’s Possession b. Remaining on Plaintiff’s Land c. Placing a thing on Plaintiff’s Land d. Interference with Airspace e. Interference with Subsoil (Underground)  Interference The tort may be committed only against a person who has possession of the land on which the acts complained of are committed. It also implies that the defendant acted without the permission of the occupier. INTERFERENCE - Key Interference must be direct and immediate.  Compare to the requirement under nuisance – Consequential interference with the occupier’s use and enjoyment Trespass v Nuisance Trespassing should be contrasted with nuisance, which protects the quiet enjoyment of land. The major differences between the two torts are:  Nuisance claims need to show both damages and that the invasion was unreasonable  Trespass – interference and intention. INTERFERENCE – LAND What is considered “land” ? “Cuius est solum eisu est usque ad coelum et ad inferos” “ he who owns the land owns everything reaching up to the very heavens and down the depth of the earth” INTERFERENCE Takes place in the form of 1. Entering land or part of it; or 2. Of remaining there after the withdrawal of permission; or 3. Placing or projected any object on that land.  Interference - Entering the land Entering Land in Plaintiff’s Possession Hickman v Maisey 1 QB 752  The Plaintiff trained horses on his land. There was a road next it.  The defendant, a racing tout used the road in order to spy on the Plaintiff’s horses.  The court held that the defendant had committed trespass to land as he was not using the road for its purposes which was to cross over to the other side of the land.  Interference Remaining on Plaintiff’s Land (continuing trespass) Holmes v Wilson (1839) 10 A & E 50 The defendant built a buttresses on the Plaintiff’s land for the purpose of supporting the land. The Defendant had already paid compensation to the Plaintiff for trespass but nonetheless he was found liable for not removing the buttresses.  A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on land.  It will lead to a new cause of action each day for as long as it lasts: Interference Entering or placing an object on Plaintiff’s Land. Trespass to throw things onto, allow pets to wander or remain in someone’s land. Other interference would be like placing a ladder against another’s wall, removing doors and windows belonging to another and dumping soil onto another’s land. See Holmes v Wilson(1839) Interference – Entering or placing an object on the Plaintiff’s land. R v Khan Westripp v 3 WLR 889 Baldock 2 Fixing AER 779 surveillance Ladder against device on another’s wall. another’s house AIRSPACE Protection is usually provided for something which occurs at a lower level and has a more immediate impact than an over-flying aircraft. Distinction drawn between entry within the area of ordinary user and outside it. Balancing the right of the landowner and the general public to take advantage of modern technology. 150 -200 meter AIRSPACE Kelsen v Imperial Tobacco 2 QB 334 Defendant erected a sign which extended some 8 ft into the plaintiff’s property. It was held that the plaintiff was entitled to a mandatory injunction requiring the defendant to remove the sign. The intrusion was a trespass.  There was invasion of the airspace necessary for the ordinary use and enjoyment of the land and building. AIRSPACE Interference to airspace Kelsen v Imperial Tobacco 2 QB 334 A mandatory injunction was issued to the Defendant requiring him to remove his signboard which had only encroached eight inches into the Plaintiff’s airspace. Wandsworth Board of Works v United Telephone (1884) 13 QB 904 An unauthorised wire above the Plaintiff’s land constituted trespass to airspace.  Trespass Into Airspace Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Lt EG 624  A site was developed which involved the use of very tall cranes.  When the cranes were not being used they were left so that the boom were free to swing with the wind to avoid them being blown over.  As they swung, the cranes traveled over adjoining property.  Held to be trespass. Erect structure on land = taking airspace in possession  Trespass Into Airspace Bernstein of Leigh v Skyviews and General Ltd 2 AER 902  The defendant who was in the business of taking pictures of property from the air, took a picture of the plaintiff’s premises. The plaintiff sued in trespass.  It was held by the HOL that there was no trespass. The Defendant not liable.  The rationale was “the problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantages of all that science now often in the use of airspace.  The right of a landowner to the airspace above his land is limited.  What Types Of Incursion Amount To Trespass ? – Trespass Into Airspace Flying across Civil Aviation Act 1982 s 76 (1) That it is not a trespass for aircraft to fly at a reasonable height having regard to wind, weather and all the circumstance prevailing at the time. Section 76(2) states that loss or damage caused by civil (not military ) aircraft or by a person or article carried on one, while in flight or landing or taking-off is to be compensable without proof of fault. Liability of aircraft in respect of trespass, nuisance and surface damage. (1)No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and of any orders under section 62 above have been duly complied with and there has been no breach of section 81 below. Damage  Drones Covered under the Civil Aviation Act 1982 and Air Navigation Order 2009. Restriction to fly over ;- -Within 50 to 150 meters , depending on the area. Not allowed to fly over restricted or controlled area. WHO CAN BRING AN ACTION IN TRESPASS TO LAND ? This tort developed to protect a person's possession of land, and so only a person who has exclusive possession of land may sue.  Landlord/Owner  Tenant  Subtenant X Lodger X Licensee Superior right of possession ?? X Squatter Underground Incursion - Subsoil  Trespass can be committed underground.  Possession of the land include both the surface and mineral beneath. Underground Incursion- Subsoil Bulli Coal Mining Co v Osborne AC 351 The Defendant mined their land through to the Plaintiff’s land. It was held to be trespass to the subsoil.  Underground Incursion - Subsoil Bocardo SA v Star Energy UK Onshore Ltd EWCA Civ 579 Defendant’s actions in drilling diagonally into and laying pipelines through , the substrata of the claimant’s land amounted to trespass, since the claimant’s consent thereto had never been obtained. 2000 feet  Underground Incursion - Subsoil  The Infrastructure Act 2015 provides for a new right to use land to exploit petrol or deep geothermal energy without notifying owners, which includes the right of fracking - below 300m. - exploiting petroleum or deep geothermal energy at deep level.  Section 43 permits fracking without consent under 'landward areas' in England and Wales, below a surface level of 300 meters. The legislation is limited to the petroleum and geothermal industries HIGHWAY  Public right of passage. Above soil belongs to the highway authority under Highways Act 1980. Cases involving trespass to land on highways = defendant held to abuse the general public right of passage and thus have committed an unlawful act.  HIGHWAY Hickman v Maisey 1 QB 752 If the owner of the subsoil consents for persons to pass along the highway in the course of ordinary passage and take part in activities incidental to that it is not trespass, but it is trespass if that purpose is exceeded. (Discussed - entering the land) HIGHWAY Harrison v Duke of Rutland 1 QB 142 The Plaintiff used his land for shooting birds. Defendant was unhappy with the Plaintiff’s activities and entered into the Plaintiff’s land through the highway to get rid of the birds.  The court held that defendant had abused the use of the highway and interfered with the Plaintiff’s right to engage in a sport on his own land. DEFENCES Consent - permission/licence. Lawful Authority Necessity  DEFENCES – Consent/Permission/Licence A person who enters land with consent of the person in possession is not liable for trespass – ‘leave and licence’. However, if the terms of the licence has been exceeded than it becomes trespass. Consent can be express or implied. Express consent may be formally granted by the creation of a legal agreement granting a licence - Concert ticket. Implied Consent - Entering a  LAWFUL AUTHORITY A statute may authorise or impose a duty upon a local authority to carry out works that strictly speaking give rise to liability in trespass to land of another. Escape liability on the grounds of carrying out function – government agencies/law enforcement agencies.  Police – Criminal Evidence Act 1984  Social services – Children Act 1989 LAWFUL AUTHORITY DPP V Jones 2 AER 257  21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ Earlier on 22 of May the Salisbury District Council made an order of all trespassory assemblies, under section 14A of the Public Order Act 1986, were prohibited for four days and covering an area of four miles radius , from A303 and A344 roads leading /adjoining the Stonehenge, commencing at 2359 on May 28 1995 until 2359 on 1 June 1995  The officer in charge concluded that they constituted a ‘trespassory assembly’ and told them so. - When asked to move off, many did, but some, including the Appellants were determined to remain and LAWFUL AUTHORITY DPP V Jones 2 AER 257  Held: The appeal was allowed. A peaceful assembly on the highway, which did not unreasonably interfere with or obstruct the highway is allowed.  His Lordship’s opinion were that provided those activities were reasonable, did not involve the commission of public or private nuisance and did not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to those qualification, there would be a right of peaceful assembly on the highway.  NECESSITY  Is a defence if action is taken in an emergency to deal with a genuinely perceived danger.  Lord Goff in Re F identified three situations in which the defence may apply: 1. Public necessity such as the destruction of property to prevent the spread of fire. 2. Private necessity where the defendant went on to the Plaintiff’s land to prevent a fire spreading to neighbouring land over which his employer had shooting rights 3. Action is taken as a matter of necessity to come to the aid of another whose person or property is in imminent danger.  Usually restricted by the courts. NECESSITY London Borough of Southwark v Williams 2 AER 175  The defence was used by homeless squatters who had taken possession of empty property belonging to the claimant – abandoned council housing.  The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity. NECESSITY London Borough of Southwark v Williams 2 AER 175 Held: The proper use of abandoned council properties is best determined by political decision making processes. Squatters, in urgent need of accommodation, could not claim a defence of necessity because the peril they found themselves in was ‘an obstinate and longstanding state of affairs’, rather than an immediate or emergent threat. The court denied that if a starving beggar takes the law into his own hands and steals food he is not guilty of London Borough of Southwark v Williams  Lord Denning MR said: ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So, the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good.’ NECESSITY  Defence applied to damage to property. Rigby v Chief Constable of Northamptonshire 2 AER 985  During a strike by the fire service there was a siege of a gun shop in which a dangerous armed psychopath was hiding.  The police fired a tear –gas canister into the shop which ignited powder causing a serious fire.  The shop owner claimed damages for trespass to land.  The defence of necessity was upheld. NECESSITY Monsanto v Tilley and Others 2 AER 985 CA  Land owner claimed injunction against protesters who threatened to trespass and dig up genetically modified crops.  Defence of necessity was raised.  Liable for trespass..  The CA held that the defence of necessity to trespass to land and to the damage to crops on the land is very closely circumscribed.  The defence is only available in circumstances of imminent and serious danger to life or The damaged to property. the genetically modified crops, part of a field trial by the Plaintiff , was for the purpose of obtaining publicity for the defendants. REMEDIES FOR TRESPASS TO LAND Damages Injunction Re-Entry/ Self- Help Distress Damage Feasant REMEDIES DAMAGES INJUNCTION ACTION OF DISTRESS - Actual damage - Trespass is RECOVERY OF DAMAGE - compensation for loss LAND FEASANT caused by being out of continuing -Better legal title than -Cattle straying possession problem Defendant. upon one’s land Remedies Damages (which will be nominal if there is only slight harm to land). An injunction to prevent further acts of trespass (at the discretion of the court). Re-Entry/Self-help - an action for the recovery of land if a person has been deprived of lawful possession of the land (formerly known as ejectment – eviction of tenant from the property). Distress Damage Feasant - is a common law self-help legal remedy whereby a person who is in possession of land may impound a chattel which is wrongfully on that land to secure the payment of compensation for damage caused by it. DAMAGES When is damage sought ? There has to be injury to the Claimant’s land Injury – 1. Physical Damage (property); 2. Sum lost by reason of being out of possession. DAMAGES Monsanto v Tilley and others Env LR 313 There was damages to the genetically modified crops.  INJUNCTIONS To prevent/stop repeated trespass. Used when there is likelihood that a trespass will be repeated. DAMAGES OR INJUNCTION ? Shelfer v City of London Electric Lighting Co 1 Ch 287 INJUNCTIONS Jaggard v Sawyer 1 WLR 269 CA  The CA refused an appeal where the Plaintiff appealed against the award of damages instead of injunction after the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.  The CA held that a court may substitute damages for the grant of an injunction if an injunction would be oppressive. RE- ENTRY /SELF- HELP Can you remove a trespasser ? Yes, as long no more force than necessary was used to remove the trespass. Hemming v Stoke Poges Golf Club 1 KB 720 RE- ENTRY /SELF- HELP Hemming v Stoke Poges Golf Club 1 KB 720  The defendant landlord entered into the Property and removed the Plaintiff and his wife and their furniture.  The landlord had an immediate right to possession because the tenant’s right to live in the property was depended upon his continuation to work for the landlord , which he no longer did.  The court held that the Plaintiff had no right of action against the Defendant as there was no civil wrong is done by turning out a trespasser using no more force than is reasonably necessary.  DISTRESS DAMAGE FEASANT  Medieval self- help remedy.  A landowner finds another ‘s property causing damage on his land, he could seize it and withhold it from its owner until adequate compensation had been paid.  Aimed at livestock.  Can it be used clamped illegal parkers ? DISTRESS DAMAGE FEASANT Arthur v Anker QB 564  The defendants despite erecting notices warning of wheel clamping, the Plaintiff still parked his car knowing he was not entitled to park.  The Plaintiff brought proceedings against the defendants for damages.  One of defendant defences was that the defendant had seized the car damage feasant. DISTRESS DAMAGE FEASANT Arthur v Anker QB 564 The CA dismissed the claim against the Defendant. Plaintiff was aware that we was trespassing and exposing himself to the risk of his care being clamped. However, it held that while distress damage feasant was capable of applying to inanimate objects, its application to a case such as this was too remote. SUMMARY Definition of Trespass to Land Essentials to Trespass Who can bring an action in trespass to land. What types of incursion amount to trespass ?  Defences Remedies END