What is trespass?
Trespass to land is the unjustified, intentional and direct interference with the land of another
What is the first element of establishing a trespass? and what are the two requirements?
The owner of the land must have actual possession of the land (possessory rights - don’t have to own the land)
This requires:
1) Intention to possess the land, and
2) Control over it to the exclusion of others
Entick v Carrington [1765] ⌛
Facts: Secretary of State issued an unlawful warrant to search Entick’s house for seditious papers.
- The claimant does NOT need to evidence any harm
“…our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”
- The claimant does NOT need to evidence any harm
Smith v Stone 🤾
- The respondent must intend the action that leads to the interference
- Therefore, being thrown onto the land cannot lead to a trespass
League Against Cruel Sports v Scott 🐶
Facts:
- League Against Cruel Sports owned land for the sake of a deer sanctuary.
- Wildlife ought to be able to come into the sanctuaries so there are no fences
- On multiple occasions hunting dogs crossed into the sanctuary
Narrow view : “A person responsible for the control of a pack of staghounds, when hunting in the neighbourhood of land on which deer were likely to be, is liable in trespass to the owners if such land if owing to the negligence in his control of the pack, hounds crossed that land
Wide view: It may constitute a tort to fail to restrict something a respondent has control over from interfering with another’s land.
Wu v Body Corporate 366611 🏙️
Facts:
- The Body corporate changed the locks and refused to provide Mr Wu with entry unless he signed a security protocol and paid a deposit
- Mr Wu’s can’t enter common areas of the property and his own owned unit
Outcome: Confirmed tort by ouster whereby excluding a person from access can constitute a trespass
What are the different types of interference?
Negative and positive interference with someone else’s land
What is some examples of positive interference with someone else’s land?
Unlawful entry such, as in Entick ⌛
- Causing another thing to unlawfully enter, as in League Against Cruel Sports 🐶
- Remaining once no longer permitted, as in Robson v Hallett 🥊
- Allowing a thing to remain on a property while you are no-longer permitted onto a property
What is an example of negative interference with someone else’s land?
Excluding a person from accessing their own land, as in Wu v Body Corporate 🏙️
Southport Corporation v Esso Petroleum Co Ltd [1954] 🛢️ 🚢
Facts:
- A boat became stranded.
- To lighten the load, the master of the vessel jettisoned 400 tons of oil.
- The oil was carried by the tide to the claimant’s/ Southport Corporation’s land.
Denning LJ: “In order to support an action for trespass to land the act done by the defendant MUST be a physical done by him directly on to the plaintiff’s land.”
NOT A TRESSPASS
AKA Interference MUST be direct (negative or positively)
Davies v Bennison 🐱
- Facts: Women is on their property, the cat was sunbathing on the roof. A person off the property fires his gun intentionally so that the bullet hits the cat (the cat was shot).
Cuis est solum eius est usque ad coelum et ad inferos — whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell
(It’s her airspace, so if you possess a property it is all the way down to the centre of the earth, and all the way to space)
Bernstein v Skyviews [1978] QB 479. (UK) ✈️ 📸
Facts: people were flying planes over other’s property and taking photos of these properties
(Overruled the concept of Davies v Bennison 🐱)
This case dismissed the concept that someone’s airspace property rights are unbounded, and are instead limited to the “ordinary use and enjoyment of the land”.
Section 97 of the Civil Aviation Act 1990
“No action shall lie in respect of trespass, or in respect of nuisance, by reason only of the flight of 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, so long as the provisions of this Act and of any rules made under this Act are duly complied with.”
- This still doesn’t cover anything else in the air!!!
(resolves the airspace issue - and the definition of land)
Mayfair Ltd v Pears 1987 🔥 🚘
Facts: Mr Peters parks his car where he shouldn’t (he trespassed). The car then set fire and it spread to a property nearby causing lots of damage
- The result must be “necessary or natural consequence” of the respondent’s actions (Mayfair Ltd v Pears 1987)
This case was considered too remote
What were the factors considered in Mayfair Ltd v Pears 1987 🔥 🚘?
- Was the trespass intentional?
- Was the result reasonably foreseeable?
- Was the causal link closely associated in time and substance? Or is there an intervening cause?
- Was the damage property, or personal injury?
- Commercial practice and insurance coverage?
