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Lecture # 10

Trespass to land

By: Salik Aziz Vaince

[0313-7575311]

Introduction to the tort of trespass

Initially trespass was a remedy available to the king against the international aggression. With the

passage of the time its application extended to the maintenance public order i.e. it was used as a

remedy to settle boundary disputes, easement issues, etc. then came a time when a trespass was

incorporated in law of torts as a remedy available to each and every citizen of the state.

Trespass to land is one of the most common torts, which is committed. In modern law the word

trespass is used most commonly to describe the intentional and wrongful invasion of another's real

property. An action for trespass can be maintained by the owner or anyone else who has a lawful right

to occupy the real property, such as the owner of an apartment building, a tenant, or a member of the

tenant's family. The action can be maintained against anyone who interferes with the right of

ownership or possession, whether the invasion is by a person or by something that a person has set in

motion. For example, a hunter who enters fields where hunting is forbidden is a trespasser, and so is a

company that throws rocks onto neighboring land when it is blasting.

Every unlawful entry onto another's property is trespass, even if no harm is done to the property.

A person who has a right to come onto the land may become a trespasser by committing wrongful acts

after entry. For example, a mail carrier has a privilege to walk up the sidewalk at a private home but is

not entitled to go through the front door. A person who enters property with permission but stays

after he has been told to leave also commits a trespass. Moreover, a trespasser cannot defend himself

in a trespass action by showing that the plaintiff did not have a completely valid legal right to the

property.

The reason for all of these rules is that the action of trespass exists to prevent breaches of the peace

by protecting the quiet possession of real property.

In a trespass action, the plaintiff does not have to show that the defendant intended to trespass but

only that she intended to do whatever caused the trespass. It is no excuse that the trespasser

mistakenly believed that she was not doing wrong or that she did not understand the wrong. A child

can be a trespasser, as can a person who thought that she was on her own land.

Injury to the property is not necessary for the defendant to be guilty of trespass, although the amount

of damages awarded will generally reflect the extent of the harm done to the property. For example, a

person could sue birdwatchers who intruded onto his land but would probably receive only nominal

damages. A farmer who discovers several persons cutting down valuable hardwood trees for firewood

could recover a more substantial amount in damages.

Trespassers are responsible for nearly all the consequences of their unlawful entry, including those

that could not have been anticipated or are the result of nothing more wrongful than the trespass


itself. For example, if a trespasser carefully lights a fire in the stove of a lake cabin and a fault in the

stove causes the cabin to burn down, the trespasser can be held liable for the fire damage.

History Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional, invasion of a claimant’s interest either in; his person, his land or his goods. Trespass was one of medieval (Middle Ages from 5th to 15th century) forms of action, the second being “trespass on the case” or simply “case” case covered injury which was consequential to a wrong but the wrong was neither forcible nor direct. The distinction can still be seen in the law of torts today; torts which are actionable per.se, such as trespass to land and trespass to person originate from old forms of trespass, while those torts which require prove of damage such as negligence and nuisance.

The law of trespass today has much of its origin in criminal law where its function is deterrent than compensatory. For example an action will lie in trespass but not in negligence even if the claimant has suffered no damage. This shows its usefulness in protecting civil rights hence much of the law of trespass is the basis of a civil liberties today.

Some cases of trespass can be filed under criminal law for example trespass to the person such as assault and battery. This occurs where a criminal offence has been committed. In such cases the courts have powers under the Powers of Criminal Courts (Sentencing) Act 2000, s.130 to make a compensation order.

Tort Law originated in England with the action of trespass. Initially trespass was any wrongful conduct

directly causing injury or loss; in modern law trespass is an unauthorized entry upon land. A trespass

gives the aggrieved party the right to bring a civil lawsuit and collect damages as compensation for the

interference and for any harm suffered. Trespass is an intentional tort and, in some circumstances, can

be punished as a crime.

Common-Law Form of Action

Trespass is one of the ancient Forms of Action that arose under the Common Law of England as early

as the thirteenth century. It was considered a breach of the king's peace for which the wrongdoer

might be summoned before the king's court to respond in a civil proceeding for the harm caused.

Because the king's courts were primarily interested in land ownership disputes, the more personal

action of trespass developed slowly at first.

Around the middle of the fourteenth century, the clerks of the king's courts began routinely giving out

writs that permitted a plaintiff to begin a trespass action. Before that time criminal remedies for

trespass were more common. The courts were primarily concerned with punishing the trespasser

rather than compensating the landowner. From the beginning a defendant convicted of trespass was

fined; a defendant who could not pay the fine was imprisoned. The fine in this criminal proceeding

developed into an award of damages to the plaintiff. This change marked the beginning of tort action

under the common law.

As trespass developed into a means of compelling the defendant to compensate the plaintiff for

injury to his property interests, it took two forms: an action for trespass on real property and an action

for injury to Personal Property.


In an action for trespass on land, the plaintiff could recover damages for the defendant's forcible

interference with the plaintiff's possession of his land. Even the slightest entry onto the land without

the plaintiff's permission gave the plaintiff the right to damages in a nominal sum.

An action for trespass to chattels (Personal as opposed to real property; any tangible movable property

(furniture or domestic animals or a car etc.)) was available to seek damages from anyone who had

intentionally or forcibly injured personal property. The injury could include carrying off the plaintiff's

property or harming it, destroying it, or keeping the plaintiff from holding or using it as she had a right

to do.

Later, an additional Cause of Action was recognized for injuries that were not forcible or direct. This

action was called trespass on the case or action on the case because its purpose was to protect the

plaintiff's legal rights, rather than her person or land, from intentional force.

Over the years the courts recognized other forms of actions that permitted recovery for injuries that

did not exactly fit the forms of trespass or trespass on the case. Eventually, writs were also issued for

these various types of actions. For example, a continuing trespass was a permanent invasion of

someone's rights, as when a building overhung a neighbor's land. A trespass for mesne profits (profits

which have accrued while there was a dispute over land ownership) was a form of action against a

tenant who wrongfully took profits, such as a crop, from the property while he occupied it.

A trespass to try title was a form of action to recover possession of real property from someone who

was not entitled to it. This action "tried title" so that the court could order possession for the person

who turned out to be the rightful owner.

These common-law forms of action had serious shortcomings. A plaintiff who could not fit her

complaint exactly into one of the forms could not proceed in court, even if she obviously had been

wronged. Modern law has remedied this situation by enacting rules of Civil Procedure that replace the

common-law forms with more flexible ways of wording a civil complaint. The various trespass actions

are still important, however, because modern property laws are largely based on them. The rights

protected remain in force, and frequently even the old names are still used.

Trespass to Land

In modern law the word trespass is used most commonly to describe the intentional and wrongful

invasion of another's real property. Maxim “cui us est solum, eius est usque ad coelum et ad

infernos” –whoever owns the land, owns it all the way to the heavens and to hell.

An action for trespass can be maintained by the owner or anyone else who has a lawful right to

occupy the real property, such as the owner of an apartment building, a tenant, or a member of the

tenant's family. The action can be maintained against anyone who interferes with the right of

ownership or possession, whether the invasion is by a person or by something that a person has set in

motion. For example, a hunter who enters fields where hunting is forbidden is a trespasser, and so is a

company that throws rocks onto neighboring land when it is blasting.

Every unlawful entry onto another's property is trespass, even if no harm is done to the property. A

person who has a right to come onto the land may become a trespasser by committing wrongful acts

after entry. For example, a mail carrier has a privilege to walk up the sidewalk at a private home but is


not entitled to go through the front door. A person who enters property with permission but stays

after he has been told to leave also commits a trespass. Moreover, an intruder cannot defend himself

in a trespass action by showing that the plaintiff did not have a completely valid legal right to the

property. The reason for all of these rules is that the action of trespass exists to prevent breaches of

the peace by protecting the quiet possession of real property.

In a trespass action, the plaintiff does not have to show that the defendant intended to trespass but

only that she intended to do whatever caused the trespass. It is no excuse that the trespasser

mistakenly believed that she was not doing wrong or that she did not understand the wrong. A child

can be a trespasser, as can a person who thought that she was on her own land.

Injury to the property is not necessary for the defendant to be guilty of trespass, although the

amount of damages awarded will generally reflect the extent of the harm done to the property. For

example, a person could sue birdwatchers who intruded onto his land but would probably receive only

nominal damages. A farmer who discovers several persons cutting down valuable hardwood trees for

firewood could recover a more substantial amount in damages.

Trespassers are responsible for nearly all the consequences of their unlawful entry, including those

that could not have been anticipated or are the result of nothing more wrongful than the trespass

itself. For example, if a trespasser carefully lights a fire in the stove of a lake cabin and a fault in the

stove causes the cabin to burn down, the trespasser can be held liable for the fire damage.

It may be a trespass to tunnel or mine under another person's property, to force water or soil under

the property, or to build a foundation that crosses under the boundary line. Underground

encroachments are usually an exception to the rule that no harm needs to be shown in order to prove

a trespass. Generally, trespass actions are permitted only where there is some damage to the surface

or some interference with the owner's rights to use her property.

Potential claimant/ who can sue for trespass to land The claimant should be the current possessor of land at the particular time a wrong of trespass took

place. He may not be the superior owner but he can be an owner through free hold, leasehold, license, or

exclusive possessions. As trespass of land is a wrong against the possession, not ownership, of the land, only the person who

has exclusive possession of the land in question can sue. Thus, possession refers to occupation or

physical control of the land - use of the land without possession is not sufficient; nor is ownership of

the land without possession.

Definition of Trespass to Land

General

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.

According to Ratanlal

“It is an unwarrantable entry upon the land of another or any direct or immediate act of interference

with the possession of land”.


According to Case Law: Entick v Carrington 1765

In this case Lord Camden has defined trespass to land as “No man can set his foot upon my ground

without my license but he is liable to an action though the damage be nothing.

According to Halsbury’s laws of England

“It is a wrongful act done in disturbance of the possession of property of another, against his will’.

Explanation

Trespass to land is a continuing wrong which lasts so long as the injury to the land continues and gives

rise to action “de die in diem” i.e. from day to day, so long as it lasts.

What Does Trespass To Land Protect?

Trespass to land protects the possessory interest in land and includes the surface of the land, the

earth or other material beneath the surface, and the air space just above the surface.

Essentials of trespass to Land

Trespass to land essentially involves some form of interference with land and, like the other forms of

trespass, is actionable per se, so there does not need to be any actual damage to the land.

The elements of the tort are:

1. The claim must involve land

2. The land must be in the claimant’s possession

3. The defendant must interfere with the land

1. Land

Land includes not only the soil itself, but things under it, any building that is fixed to the surface, and

such air space above needed for the normal use of the enjoyment of the land and any structure on it.

In Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd (1987), for

example, the boom of Berkeley’s crane over sailed Anchor Brewhouse’s land and was held to

constitute a trespass. It is not necessary to show damage to obtain an injunction for trespass. Anchor

Brewhouse succeeded in obtaining the injunction they were looking for as the Court found no “special

circumstances” to prevent the injunction.

2. Possession

The claimant need not own the land, but must be in possession of it. Possession mean to exclude

others from the land and it must exist at the time the trespass is committed. For example, if someone

trespasses on rented land, it is the tenant who has the right to sue for trespass, not the landlord.

Simply being on the land does not amount to possession for the purpose of trespass i.e. a guest in a

hotel.

3. Interference

The interference must be direct and physical; indirect interference may give rise to an action for

negligence or nuisance, but not for trespass.

For example, your next door neighbor prunes their roses and throws the clippings into your garden

that may be trespass. However, if they simply fail to prune them, so that they overhang your garden,

that may be nuisance, but not the trespass.


Proof of damage

Trespass is actionable per se; damage need not be proved to sustain the action.

Example: A public road is to be used only for passage. A person using it for other purposes commits

trespass. Similarly, staring in at other’s window affects the right of privacy, thus amounts to trespass.

Modes of Trespass to Land

Trespass to land may be committed in one of the three ways:

Trespass by wrongful entry

A wrongful personal entry by the defendant on the plaintiff’s land amounts to trespass. The slightest

crossing of boundary is suffices, e.g. sitting on a fence amounts to trespass, and no actual damage

need to be proved. 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.

Basely v Clarkson (1681)

D owned land adjoining C’s and whilst mowing his own lawn he involuntarily and by mistake mowed

(Cut with a blade or mower) down some grass on the C’s land. C was successful in claiming against

trespass. This case is also an example of mistaken entry.

Trespass by remaining on the land

A person who has lawfully entered on the land in a possession of another commits a trespass if he

remains there after his right of entry has ceased. Thus a person who has entered by license of the

occupier will be liable as a trespasser if after request he fails to leave the premises.

Trespass by placing things on the land

It is a trespass to cause any physical object across the boundary of the plaintiff’s land or even to come

into physical contact with the plaintiff’s land even though there may be no crossing of the boundary.

Onus of proof

In an action for trespass, the plaintiff must prove two things:

1. That he was in actual possession at the time of trespass

2. That there was direct interference with the possession of his land.

Requirement for voluntary conduct

Every unlawful entry upon the land of another is trespass however the entry may be bonafide,

knowingly or mistakenly. The only check on that entrance is that it should be voluntary. An

involuntary entrance does not amount to trespass. Thus a man thrown onto the land of another by

the effect of nature or some other person, it would not be trespass.

Trespass is actionable Per Se

Trespass is actionable per se i.e. without proof of damage. It means that there is no need to prove

damage suffered by the plaintiff in the result of wrong done against him i.e. trespass to land.


Classification of tort of trespass to land

Tort of trespass to land can be classified into the following terms:

What is Trespass to Land?

Trespass to land comes under the law of Tort. Basically, the law of tort concerns itself with providing

remedies to people who find themselves hurt/harmed by the conduct of other people. Trespass to

land is one of the oldest actions known to the common law (although it no longer is a crime at common

law), and can be defined as an unauthorised interference with a person’s possession of land.

It is the direct invasion of possession which is actionable, thus, once the invasion has been proved, it

is for the defendant (the person committing the invasion) to justify his actions.

There has to be an intention to interfere with the right of possession, thus involuntary actions are not

actionable. Trespass to land does not require proof of damage for it to be actionable. Thus, the

defendant cannot claim that he entered the land reasonably and/or with due care.

What are the types of Trespass?

The most common form of trespass is entry by the defendant on to the plaintiff’s land. However, there

are other forms of trespass, such as placing objects on the land, or even placing objects that are in

contact with the plaintiff’s property or land. Where someone was lawfully on the land, either by

exercising a right of entry, or because he had permission to be on the land, that person will be

committing trespass if he abuses the right or permission by acting outside the purpose for which he

was granted the right/permission. A trespass will also be committed if he remains on the land after the

right/permission has expired.

Types of trespass to land

Trespass by relation

It involves the immediate right to possess and signifies the lawful right to retain possession when one

has it or one has acquired it i.e. once a person is entitled to immediate possession of land, he is

deemed to have been in possession from the moment that his right to it is accrued.

Plaintiff’s possession of land relates back to the time when he first acquired the right to possess that land and is therefore deemed to have been in possession of it from that time.

He can therefore sue for acts of trespass while he was actually out of possession and it also provides foundation for the claim for damage suffered by a person as a result of having been kept out of possession of his land.

If A owns land which he sells to B passes before B has taken actual possession of the land and in the meantime C commits an act of trespass on the land , B may sue C for the trespass notwithstanding that he had not yet taken possession of that land when the act of trespass was committed. That means B’s title relates back to the time when he first became entitled to take possession i.e. the time he bought the land from A.

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.

Basely v Clarkson (1681) 3 Lev 37

While moving his grass, the owner of land accidentally mowed some grass on his neighbour’s land.


Trespass to the airspace (Aerial trespass)

The rule of ordinary law states that the owner of the land is also entitled to the space above his

property. Intrusion into airspace at a relatively low height constitutes trespass, however, it’s now

settled that land owners rights in airspace extends only to such a height as is necessary for the

ordinary use and enjoyment of land and structures on it.

It means then that an aircraft flying several hundred feet above a house is not trespass at common law;

however, if the aircraft or anything from it falls upon the land or comes into contact with a structure

on the land, it results into trespass no matter the height from which it fell.

Kelsen -v- Imperial Tobacco Co (of Great Britain and Northern Ireland) Ltd; 1957

Facts: By an assignment in April 1946, the plaintiff acquired the lease of a shop and the tobacconist’s

business carried on there. The premises were on a street with a ground floor room with a flat roof top.

On the two front sides the shop was bounded by streets and on one side of the back was an adjoining

building of three stories. During the lease, the defendants, wholesale tobacconists, displayed three

advertising signs on the wall with the adjoining building about the shop. The signs made of sheet metal

mounted on a frame which fixed against the wall but, on account of the mounting, protruded a

distance of 4 inches into the air space above the flat roof of the shop. In April 1948 the landlords gave

to the owners of the adjoining building consent to a large new sign in place of the existing signs. In

December 1948, the landlords granted a new lease of the shop to the plaintiff. By clause 1 of the lease,

which contained the parcels, the premises devised to the plaintiff were expressed to be subject to ‘all

that right so ds wants to any of the adjacent property, and by clause 2 the plaintiff covenanted not to

permit any sign or advertisement to be posted on or over any part of the exterior at the shop and

premises. In January 1950, no new sign having yet been affixed on the adjoining building, its owners

again obtained the permission of the landlord of the plaintiffs shop for the defendants to substitute a

new large advertising sign for the existing the smaller ones. A new sign was elected by the defendants

in 1950 with the plaintiff’s knowledge. Its total length was about 20 feet, and the maximum distance by

which part of the sign projected from the wall and over the building was 8 inches. From time to time

the defendant’s servants had access to the sign, from the plaintiff’s shop and with his knowledge, to

carry out maintenance work and repairs. In December 1953 as a result of a business dispute between

the plaintiff and the defendants, the plaintiffs asked the defendants to remove the sign. After the

dispute was settled, the plaintiff on being asked by the descendants whether he still wanted the side

removed, replied that it could remain. Further arose between the parties, and the plaintiff gave notice

to the defendant to remove the sign, and the defendants having failed to do so now brought an action

against them for trespass.

Held: 1 the air space above the shop was part of the premises demised to the plaintiff on a true

construction of the lease of December 1948 there was nothing to displace the prima facie conclusion

that the demise of the premises included the air space above the shop; 2 when in January 1950, the

landlords consented to the substitution of the new sign, they could not derogate from the demise of

the airspace in December 1948 to the plaintiff; 3 the plaintiffs conduct in allowing the sign to remain

on the wall of the adjoining building from 1950 onwards did not stop him from subsequently requiring

it to be removed, because a be hard, as most, mary represented to the defendants but he would not


object to the sign in future and representation of an intention did not give rise to an estoppel; and on

the facts, the descendants had not been induced by the plaintiff’s conduct to act to their prejudice to

such an extent as to oblige them to continue to display the sign: 4 The invasion of the plaintiff’s air-

space by the sign amounted to a trespass on the part of the defendants and not merely to a nuisance.

On the facts of the case, although the injury to the plaintiff’s legal rights was small, he was entitled to a

mandatory injunction requiring the defendants to remove that sign.

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.

In Bensten v. Skynews and General ltd [1978] QB 479- The defendant used an overflying aeroplane to

obtain photographs of Lord Bernstein’s country residence. Lord Bernstein claimed that in so doing the

defendant was trespassing in his airspace and invading his right to privacy. The court held that the

defendant was not liable for trespass. 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.

Didow v Alberta Power Ltd, [1988] 5 WWR 606 (Alta CA)

Facts: Power Company had poles with protrusions that extended over Didow’s land. Didow sued for

trespass.

Ratio: An intrusion that interferes with potential or actual use and enjoyment of the land constitutes

trespass. There must also not be overriding policy considerations.

Analysis: The court noted that the poles were permanent structures. Based on the Bernstein Test,

there must be an infringement on the actual or potential uses of the land. In this case, there was. The

court then found that there were no overriding policy considerations.

Holding: Decision in favour of Didow; later overturned by legislation.

Comments: The defendants argued that airspace is common property (per the Air Canada case). They

also argued, per Lacroix, that a landowner does not own airspace -- nobody owns it. This argument was

not successful. Airspace - invasion of the airspace above the land may also constitute a trespass, but is

limited to the height at which the invasion would interfere with the full use of the land. For example,

overhanging eaves will be a trespass. A trespass will also be committed if a structure that is connected

to an owner‘s adjoining land overhangs their neighbour’s land, even if it is at a height that would not

necessarily affect the neighbour‘s use of the land. Conversely, overhanging tree branches will only be

classed as a nuisance (where damage has to be proved).

Mistaken or negligent entry

Mistake is no defence to trespass. It will not avail the defendant that he innocently thought that he was on his own land

Trespass to land is an intentional tort. However, intention for the act is required, not an intention to

trespass. Consequently, deliberate entry is required and lack of knowledge as to trespass will not be a

defence.


Mistaken entry (Basely v Clarkson (1681) 3 Lev 37)

The defendant cut grass from the land which he believed belonged to him, but in fact belonged to the neighbor, the claimant.

The court held that whether the defendant knew the title of facts or not was irrelevant: his act was voluntary and did cause loss that the claimant had suffered.

There is no liability if the entry is involuntary i.e. a person who is carried onto the land of the claimant by a 3rd party is not liable in trespass

Smith v Stone (1647) Defendant was violently pursued into the claimant’s land who sought damages in the action for

trespass to land. It was held that a trespass cannot be committed involuntarily and the action failed. There was trespass by the people who carried him there and not by the defendant.

Negligent entry

League Against Cruel Sports v Scott.

The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in pursuit of deer. The Ps

sued the joint Masters of the Hounds for damages and sought an injunction against further trespasses.

Park J issued an injunction in respect of one area restraining the defendants themselves, their servants

or agents, or mounted followers, from causing or permitting hounds to enter or cross the property.

Damages for six trespasses were awarded.

The judge said: "Where a master of staghounds takes out a pack of hounds and deliberately sets them

in pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may enter or

cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter

such land or if by his failure to exercise proper control over them he causes them to enter such land."

Trespass to the ground beneath the surface (Trespass to subsoil)

Any intrusion upon the subsoil is just as much trespass as entry upon the surface. The surface and the

subsoil can be possessed by different persons. If A is in possession of the surface and B, the subsoil and

I walk on the land that would result into trespass against A and not against B.

If I dig a hole vertically in the land, that would be trespass against both A and B. If I bore a tunnel from

my land into B’s subsoil, that would be trespass against B only.

Even if the land owner has been deprived of ownership of minerals by statute, intrusions beneath the

surface such as pipelines in order to obtain the minerals still amounts to trespass, though in such a

case the quantum of damages will be very limited.

In Bulli Coal Mining Co v Osborne [1899] AC 351, the Ds mined from their land through to the P's land.

This was held to be trespass to the subsoil.

Possession of 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.

Thus, a landlord of leased premises does not have exclusive possession, nor does a lodger or a licensee.

However, a tenant or subtenant does.

Trespass by One Entitled to Possession

In nearly all states, a person who forcibly enters onto land is guilty of a crime, even if that person is

entitled to possession of the land. For example, a landlord who personally tries to eject a tenant


creates a potentially explosive situation. To discourage such "self-help," the states provide legal

procedures for the rightful owner to use to recover his land. Many states do not let the illegal occupant

sue the rightful owner in trespass for his forcible entry, but the occupant can sue for Assault and

Battery or damage to her personal property.

Continuing trespass

A trespass is continuing when the offending object remains on the property of the person entitled to

possession. A building or fence that encroaches on a neighbor's property creates a continuing trespass,

as does a tree that has fallen across a boundary line.

Some courts have allowed a series of lawsuits where there is a continuing trespass, but the prevailing

view is that the dispute should be settled in its entirety in one action.

Continuing trespass signifies the rule that continuance of a trespass is a fresh trespass, and an action

may be brought in respect of it i.e. the continuing of a trespass from day to day is considered in law a

separate trespass on each day. This is because as long as the trespasser continues, the plaintiff

continues to suffer and there is a fresh cause of action.

It means that a person who commits a trespass by putting things on the plaintiff’s land and does not

remove them, is liable for a continuing trespass, where a fresh cause of action arises de die diem i.e.

day by day besides the original action.

If the act constituting trespass remains without the trespasser doing anything to avoid it, there is said to be a continuing trespass. It arises for example where a trespasser chooses to remain on a plaintiffs land or fails to remove any matter from that land, which is causing trespass.

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.

The remedies can be tailored to the particular kind of harm done. A defendant might have to pay

damages to repair the plaintiff's property or compensate the plaintiff for the diminished value of her

property. Where a structure or object is on the plaintiff's property, the defendant may be ordered to

remove it.

Konskier v Goodman Ltd [1928] 1 KB 421

This case considered the issue of negligence and trespass and whether or not the failure of a builder to

remove rubbish from a neighbours property which sometime later caused damage to a new tenants

property amounted to an actionable trespass by the tenant even though the tenant was not present

when the initial trespass occurred.

Where there is continuing trespass, the plaintiff can bring a number of actions against the defendant.

This is because as long as the trespasser continues, the plaintiff continues to suffer and there is a fresh

cause of action.

For example, in Holmes v Wilson and others (1839) the defendants erected buttresses to support a

sinking road, necessitating trespass onto the claimants land. The claimant sued and recovered

damages, but the defendant failed to remove the buttresses so the claimant sued again.

Transfer of that land by an injured party does not prevent transferee from suing the defendant for continuing trespass.


There is no trespass if the defendant merely omits to restore land to the same condition (apart from

removing anything which he has put on the land) in which he found it i.e. if he fails to fill up a pit which

he has dug on the neighbours land . He is only liable for the original digging and not for continuing

trespass in allowing the pit to remain unfilled; however, he is liable for negligence if anyone falls into

the pit.

In CLEGG V DEARDEN; a trespasser had broken through a wall mine and after the statute had the

original trespass, water had run through the hole and injured the plaintiff. It was held in an action on

the case that there could be no recovery because leaving a hole there was not a continuing trespass

and that running of the statute had already barred the trespass together with its results.

Trespass by wrongful entry

Is committed where there is physical contact with another person’s property on the land however

slight.

It includes acts of encroaching on the land or walking through it without authority, sitting on the

plaintiffs fence, putting a hand through the plaintiffs window, abuse of right of entry i.e. a person

authorized to enter premises for the purpose of repairing them becomes a trespasser when he picks

and eats fruits on the premises without authority and throwing things on someone‘s land.

WESTRIPP V BALDOCK

Facts: Plaintiff and the defendant occupied adjoining houses included within a building scheme. Restrictions were enforceable by either of them against the other. The material restriction was that at no point should any building be erected as a shop, warehouse or factory or any trade or manufacture be carried out. Defendant was a jobbing builder and placed ladders, planks, sand against the wall of the plaintiff’s house. At the rear of the house, the defendant had erected a shed touching the plaintiff’s garden wall which he used as a store for builders fitting. Plaintiff brought an action alleging a technical trespass, damage by damp through the pointing being injured by these articles and breach of restrictive covenant by erection of a warehouse and carrying out trade.

Held: placing of the ladders and other articles against the wall was a technical trespass which had damaged the pointing and the plaintiff was entitled to the cost of repainting the wall.

Defendant was carrying on a trade within the meaning of the covenant, as the business of a jobbing builder involved the buying and selling of materials and plaintiff was entitled to an injunction.

Trespass by joint owners

Joint owners enjoy their property by sharing it. But when there is a direct and clear infringement of a

distinct right of one joint owner by the other, the action for trespass can be maintained by the latter.

Example: where one of the owners of a joint party wall raises its height with the consent of the other

owner. Such raised portion is also a party wall. Neither party is at liberty to open a window in the

portion so raised, if one of them does so it is a trespass against which injunction ordering to close the

window can be granted.

Trespass by animals

Trespass by a man’s cattle is dealt with in the same manner as if the trespass had been committed by

the man himself.


Trespass AB INITIO

Meaning of the concept: Trespass ab initio means, trespass from the very beginning. He who enters

upon the land of another, by the authority of law, not of the party, and is subsequently guilty of an

abuse of that authority by committing a wrong of misfeasance (Doing a proper act in a wrongful or

injurious manner) against that other person, is deemed to have been entered without authority and is

liable to a trespass ab initio.

Explanation

Whether the defendant is liable for trespass ab initio, the plaintiff has to prove that the defendant had

entered upon the plaintiff’s land by the authority of law and not of the plaintiff. It means that it was

the law that permitted the defendant to enter upon the plaintiff’s property. After then the plaintiff has

to prove that it was the defendant’s act, which was wrong and not the omission. Thus for a wrongful

omission or non-feasance, the defendant would not be liable for trespass ab initio.

Origin

The origin of this doctrine of trespass ab initio is found in the leading case:

Vaux vs. Newman, 1610

Facts: Six carpenters entered the Queen’s Head Inn, Cripple Gate and consumed a Quart of wine and

some bread for which they refused to pay. The question for the court was whether their non-payment

made their entry tortuous, so as to enable them to be sued in trespass.

Held: The court held that “when entry, authority or license is given to anyone by the law, and he

abuses it, he shall be a trespasser ab-initio”.

Points for proof

There are two points which a plaintiff has to prove in order to succeed in order to succeed in his action

which are as follows:

1. That the authority has been given by the law and not by a private person.

2. The subsequent act done was a clear and positive act of misfeasance.

Limits of the doctrine

Following are the defences available to the charged:

1. Where authority is granted by the party and same is abused

2. Where the subsequent act or abuse amounts to an omission or mere non-feasance

3. Where there exists an independent ground for entry.

Trespass by placing things on land

Is committed by him who places any material thing on the plaintiffs land or who allows such material

to come into contact with or cross boundary of the plaintiff’s land. This type of trespass is similar to

nuisance but the two are different in the following aspects:

1. In trespass, injury is direct since it affects the plaintiff’s possession but in nuisance the injury is

indirect because it is the plaintiffs comfort and convenience in the use and enjoyment of land that

is affected rather than its possession.


2. While trespass relates to possession of land, nuisance relates to the use or enjoyment of land i.e. in

trespass possession of land is at stake, while in nuisance it is the use and enjoyment of the land

that is at stake.

Trespass by remaining on land

Is trespass committed by a person who having been originally authorized to enter upon the land, is

subsequently asked to leave. Such a person then becomes a trespasser when he fails to leave the land

within a reasonable time.

If a license is withdrawn, a person is not a trespasser during the reasonable time which he takes to leave the premises

MINISTER OF HEALTH V BELLOTTI Facts: The respondents were evacuees from the Gibraltar and occupied premises at an evacuee’s

centre under license from the Ministry of Health. The respondents were licensees for valuable

consideration in respect of the premises which they occupied and licenses extended to allow them to

live in their flats, to have furniture of their own and which in fact they did and also to have their wives

and families there .Differences arose between the respondents and officials at the ministry and the

respondents were each given a week to evacuate the premises. They failed to leave and after an

attempt to eject those proceedings were taken in the county court to obtain orders for possession. It

was contended that the notices were invalid on ground that the time given to vacate the premises was

unreasonably short hence licenses were not effectively revoked.

Held: the length of time to be given to licensees on the determination of the licenses must depend

upon the circumstance of any particular case and in the present case, the time given was insufficient

Notice determining a license revokes the license immediately on service and the notice becomes

operative on expiration of a reasonable time from the date of service. This is so even though the notice

states a period of time for vacation of the premises which is held to be too short.

Defenses available to defendant

In some cases a defendant is not liable for trespass even though she has intruded onto another's

property. Public officials, for example, do not have any special right to trespass, but a housing

inspector with a Search Warrant can enter someone's building whether the owner consents or not.

A police officer can pursue a criminal across private property without liability for trespass. The police

officer's defense to a claim of trespass is her lawful authority to enter.

A hotel employee who enters a guest's room to perform housekeeping services is not a trespasser

because it is customary to assume that guests want such services. If charged with trespass by the

guest, the hotel would claim the guest consented to the employee's entry.

A landlord does not have the right to enter a tenant's apartment whenever the landlord wants.

However, the landlord usually has the right to enter to make repairs. The landlord must arrange a

reasonable time for the repairs, but the tenant's consent to this arrangement is either contained in the

lease or is implied from the landlord's assumption of responsibility for making repairs inside the

apartment.

A person is not guilty of trespass if he goes onto another's land to protect life or property during an

emergency. For example, a passerby who sees someone pointing a gun at another person may cross


onto the property and subdue the person with the gun. Someone at the scene of a traffic accident may

go onto private property to pull a victim from one of the vehicles.

Permission to enter someone else's property can be given either by consent or by license. Consent

simply means giving permission or allowing another onto the land. For example, a person who lets

neighborhood children play in her yard has given consent. Consent may be implied from all the

circumstances. A homeowner who calls a house painter and asks for an estimate cannot later complain

that the painter trespassed by coming into her yard.

Sometimes consent to enter another's land is called a license, or legal permission. This license is not

necessarily a certificate and may be in the form of a written agreement. For example, an electric

company might have a license to enter private property to maintain electrical lines or to read the

electric meter. The employees cannot act unreasonably when they make repairs, and they and the

company are liable for any damage they cause to the property.

The following are the defenses that may be available to a defendant in an action for trespass;

Leave and license

This is a permission which makes lawful that which would otherwise be unlawful. Thus, a person who

enters the land by way of licence will not be a trespasser. However, if that person remains on the land

after the licence has expired, or has been revoked, or he exceeds the conditions of the licence, that

person will become a trespasser.

Permission to enter someone else's property can be given either by consent or by license. Consent

simply means giving permission or allowing another onto the land. For example, a person who lets

neighborhood children play in her yard has given consent. Consent may be implied from all the

circumstances. A homeowner who calls a house painter and asks for an estimate cannot later complain

that the painter trespassed by coming into her yard.

It is a good defense to an action for trespass. A license only makes an act lawful which, without it,

would be unlawful. A license may be either express, as in the case of a guest in the house, or

employed, as in the case of customer entering in a shop.

A licence is a permission to enter land and may be express, implied or contractual. A dictionary

definition is as follows: "In land law, a licence is given by X to Y when X, the occupier of land, gives Y

permission to perform an act which, in other circumstances, would be considered a trespass, e.g.,

where X allows Y to reside in X's house as a lodger. A bare licence is merely gratuitous permission. A

licence may be coupled with an interest, as where X sells standing timber to Y on condition that Y is to

sever the timber; in this case the sale implies the grant of a licence to Y to enter X's land.

Street v Mountford [1985] AC 809

Facts: Mr Roger Street granted a term of occupation to Mrs. Mountford for a rent. The written

agreement included numerous references to the effect that it was a "licence". Several clauses also

purported to retain for Mr Street rights of entry and termination. Mrs. Mountford was also restricted

in what she could do on the property, including bringing in animals and children. The agreement was

so drafted to create a licence that would not come under the Rent Act, rather than a tenancy, which

would entitle Mrs. Mountford to the protection of the Rent Act. Mrs. Mountford subsequently applied

for rent protection, and the case progressed to the House of Lords.


Held: The Lords (Lord Scarman, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brightman and Lord

Templeman) unanimously held - with Lord Templeman delivering judgment - that an agreement for

exclusive possession for a term at a rent creates a lease or tenancy, regardless of what the parties call

it. Lord Temple man memorably stated that "a five pronged implement for manual digging is a fork",

whatever the manufacturer chooses to call it. He also went on to explain the theoretical basis for

tenancies, including periodic tenancies. The case is of much significance in the area of lease law

throughout much of the common law world.

Upon referring to this case, it is important to note that although a landlord is naming the document a

licence, if the above terms are incorporated into the licence, i.e. exclusive possession with a term

certain at a full market rent, calling the document a licence is only a way for the landlord to steer clear

of the laws that govern leases under the Landlord and Tenant act 1954.

If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the

licensee becomes a trespasser

Hillen v ICI (Alkali) Ltd [1936] AC 65)

Stevedores, who were lawfully on a barge for the purpose of discharging it, nevertheless became

trespassers when they went onto an inadequately supported hatch cover in order to unload some of

the cargo. They knew that they ought not to use the covered hatch for this purpose; ‘for them for such

a purpose it was out of bounds; they were trespassers’. The stevedores could not complain that the

barge owners should have warned them that the hatch cover was not adequately supported. ‘So far as

he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which

are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined

accordingly.’

Such a person is allowed a reasonable time in which to leave

‘It seems to me that the occupier of any dwelling house gives implied permission to any member of

the public coming on his lawful business to come through the gate, up the steps, and knock on the

door of his house.’

There is also the defence of estoppel by acquiescence, that is, consent which is expressed or implied

from conduct, e.g., inactivity or silence

Where a person has permission to enter land , either expressed or as implied by the property’s owner, then he won’t be held liable for trespass. Any member of the public has an implied license to approach premises with legitimate inquiry, even if that inquiry has nothing to do with the occupier’s interest. In this case, a police officer without a search warrant is in the same position as a member of the public. This defence exists unless the defendant has exceeded the terms of the license.

When the license is just bare (no consideration is offered by the defendant), the license can be revoked at any time. If the defendant takes more than reasonable time, she/he was given to move out, and then he/she is committing a trespass.

A contractual license is revoked only when: 1. There has been an expressed or implied time frame limit in the contract 2. Demand for injunction to prevent breach of contract

Consent

A person or claimant who agrees to a certain action cannot complain or sue.


PETERS V PRINCE OF WALES THEATER LTD[12] The defendant employed a sprinkler system to protect the building from fire. The claimant also

occupied the building and complained when she stock was damaged by water from the sprinklers. It was held that the water supply benefited both the claimant and defendant and therefore there was

no liability.

Act of public Necessity

Entry on the land of another person, without his consent, is justifiable on the ground of public

necessity. A person is not guilty of trespass if he goes onto another's land to protect life or property

during an emergency. For example, a passerby who sees someone pointing a gun at another person

may cross onto the property and subdue the person with the gun. Someone at the scene of a traffic

accident may go onto private property to pull a victim from one of the vehicles.

Necessity is a defence to show that it was necessary for the defendant to enter the claimants land Trespass may not arise where there is actual/perceived danger in relation to which steps are taken. For example, in case of fire, one may get into another person’s land to prevent further harm In RIGBY V CHIEF CONSTABLE OF NORTHAMPTONSHIRE Facts: A young man broke into a gun shop and armed himself; the police fired a canister of CS gas into

the shop so as to smoke out the young man. Unfortunately, the shop caught fire and the shop keeper sued for damages.

Held: It was held that the police could rely on the defence of necessity because the boy was a clear threat to the public and since the police had not contributed to that problem, they were not liable. It was held that necessity was a defence provided that there was no negligence on the part of the defendant in contributing to the state of necessity, thus the action for trespass failed.

Prescription

In an action for trespass, a defendant may plead that he was justified by reason of prescription, as by

showing a right of common, or right of way over the land.

Special property and easement

A guarantee of an easement may enter upon the servient (Subordinate) tenement (apartment house)

in order to do necessary repairs, and is a good defense to an action for trespass. A landlord does not

have the right to enter a tenant's apartment whenever the landlord wants. However, the landlord

usually has the right to enter to make repairs. The landlord must arrange a reasonable time for the

repairs, but the tenant's consent to this arrangement is either contained in the lease or is implied from

the landlord's assumption of responsibility for making repairs inside the apartment.

Recaption

If a person takes away the goods of another upon his on land, he gives to the owner of them an

employed license to enter for the purpose of recaption. Similarly if the goods are on the land of

another in the pursuance of a felonious (Involving, being or having the nature of a crime) act of a third

person, the entry will be justifiable.

Re-entry on land

An owner who has been wrongfully dispossessed may re-enter on his land, and if he does so, he cannot

be sued for trespass by the person who has been wrongfully there.


Self-defense

If a person has actual possession of goods, chattels or animals and another wrongfully attempts to take

the same from him, he is justified in using such force as is necessary for the purpose of defending his

own possession.

Abetment of nuisance

An occupier of land may, with prior notice enter upon an others adjoining land for the purpose of

removing the nuisance upon it.

Authority of law

Acts which would otherwise be trespass are not so when justification is provided for by the law Where defendant is legally authorized to enter onto the claimant’s land by statutory authority, he

can’t be liable for trespass on land e.g. the police have powers under the Police and Criminal Evidence Act 1984 to enter premises and search them. . However, abuse of the legal authority is punishable. When one had initial authority, then later did something unlawful, it results into a doctrine known as ab initio

In ELIAS V PASMORE: The police had lawfully entered the plaintiff’s residence to arrest a man. The

police took some documents, some of which were taken unlawfully. It was held that the original entry

was not trespass, but there was trespass to goods when they took the documents.

Execution of legal process

Entry under legal process is justifiable. Person who execute legal process like a warrant of arrest,

attachment or search or protected by the warrants from liability in respect of the acts authorized by it.

What Is The Difference Between Nuisance And Trespass To Land?

The major difference between nuisance and a trespass to land is the interest being interfered with. In

nuisance, a person is interfering with a current possessor's use and enjoyment of the property.

Whereas, in trespass to land, the person is interfering with the exclusive possession and physical

condition of the land.

Duties towards trespassers

A homeowner is limited in what he can do to protect his family and property from trespassers. The

homeowner cannot shoot children who keep cutting across the lawn or set traps or deadly spring-

operated guns to kill anyone who trespasses on the property.

Deadly Force in any manner is generally not justifiable except in Self-Defense while preventing a

violent felony (A serious crime such as murder). Mere trespass is not a felony.

The owner or person in possession of real property can be held liable if guests are injured on the

property because of the owner's Negligence.

A property owner generally does not have the same duty to make the premises safe for a trespasser,

however. A trespasser assumes the risk of being injured by an unguarded excavation, a fence

accidentally electrified by a falling wire, or a broken stair. The occupant of real property has a duty

only to refrain from intentionally injuring a trespasser on the premises.

These general rules have several exceptions, however. A property owner who knows that people

frequently trespass at a particular place on his land must act affirmatively to keep them out or exercise


care to prevent their injury. If the trespasser is a child, most states require an occupant of land to be

more careful because a child cannot always be expected to understand and appreciate dangers.

Therefore, if the property owner has a swimming pool, the law would classify this as an attractive

nuisance that could be expected to cause harm to a child. The property owner must take reasonable

precautions to prevent a trespassing child from harm. In this case the erection of a fence around the

swimming pool would likely shield the property owner from liability if a child trespassed and drowned

in the pool.

Remedies

Damages

If the trespass is trivial or there is no actual damage the damage will be nominal. If the damage is done

to the land the measure of damage is usually to the diminution in value of the land, or such amount as

will compensate the plaintiff for his loss. The cost of reinstatement for example rebuilding will

sometimes be the correct measure. Exemplary damages may have been awarded where there has

been arbitrary or unconstitutional trespass by a government official or where the defendant cynically

(Showing contempt for accepted moral standards) disregards the plaintiff’s rights with the object of

making a gain from his unlawful conduct.

What damages can be sought?

The plaintiff may seek damages, or an injunction, or both.

Where the trespass is trivial, damages may be nominal or an injunction refused.

Where a trespass concerns some use of the land without causing damage, the damages will be

measured in relation to the value of the defendant’s use.

Where the trespass has caused physical damage to the land, damages are measured by the diminution

in value of the land, not the cost of restoration.

A person who has been dispossessed of their land, may bring an action for the recovery of the land. In

order to do the latter, however, the plaintiff must establish a right to immediate possession of the

land.

A plaintiff may bring an action to claim damages for his loss during the period of dispossession. The

compensation will be for the value of the use of the land and the occupation of the land, plus any

damage to the land itself.

An injunction

To prevent further acts of trespass (at the discretion of the court)

The court may order the defendant to move from the claimants land. It is a remedy to prevent further

trespass. In cases of threatened trespass or where the trespass is of a continuing nature, the claimant

may seek an injunction.

An action for the recovery of land

If a person has been deprived of lawful possession of the land (formerly known as ejectment)

Note 1: an action cannot be brought to recover land after the expiration of twelve years from the date

on which the right of action accrued: s15 of the Limitation Act 1980.


Expulsion

The person who is entitled to possession may request a trespasser to leave and if the trespasser

refuses, may remove him from the land, using no more force than is reasonably necessary. However, if

the force used in turning out a trespasser is excessive the person who used such force himself commits

a trespass upon the person of the person removed.

RE-ENTRY

The person entitled to possession can enter or re-enter the premises. He must do so in a peaceful manner subject to the common law rights to eject a trespasser.

SELF HELP

The party in possession may use reasonable force to resist wrongful entry by trespasser e.g. by erecting

fences and putting on barbed wire fences. In cases of security dogs, he should have control over it and

notify people about the dog in every entrance.

ORDER OF POSSESSION OF LAND /DECLARATION

Was formerly called ejectment .It’s an action by which the possessor of land seeks a court order to

recover it? It’s usually achieved by the claimant proving his /her title to land; he/she can now take

action against the squatters (Someone who settles on land without right or title).

MESNE PROFITS

This is usually an addition to the action for recovery of possession of land. They are consequential

damages given to the claimant for the time he/she has been from that land. It aims at recovering the

last use of property. An action lies for the damage which the claimant has suffered through being out

of possession of land; this includes profits taken by the defendant during his occupation and damages

for deterioration and the reasonable cost of getting possession e.g. In the case of

INVERUGIE INVESTMENTS LTD V HACKETT

The Privy Council was called upon to calculate mesne profits in unusual circumstance. The claimant had

been unlawfully kept out of his property in the Bahamas (Island country in the Atlantic to the east of

Florida and Cuba; a popular winter resort) for a period of 15 and half years. He was entitled to a

reasonable rental value for the period based on the published rates at which the tour operators made

,”whole sale arrangements to use holiday accommodation” It was held that the plaintiff could recover

a reasonable rent for every apartment in the hotel block the defendant had built. Though the

defendant objected that the flats had not been fully occupied, Lord Lloyd held that it was not a matter

of actual loss and hence the calculation of the total sum.

DISTRESS DAMAGE FEASANT

Is where a chattel (any tangible movable property (furniture or domestic animals or a car etc.)) is

unlawfully on the claimants land and has caused actual damage, then the claimant may retain the

chattel until the damage has been paid for. A football kicked through the window may be retained until

the damaged window is paid for.


Class activity

Teacher-led information on the historical context of the law and what constitutes trespass.

Learners read the summary in the website opposite. Make a mind map to cover the key elements the

article discusses.

Learners produce chart based on key cases to illustrate classes of claimants and defendants.

Liability tick list – learners make a chart to show the steps a lawyer would work through when

constructing liability. Apply this to key cases and then learners make their own examples.

Learners work in pairs to research and justify possible defences and their application to a scenario.

Revision task – learners summarise the important elements of the tort.

Research – learners look at the website opposite and summarise the law explained there.

Debate – This house believes that an Englishman’s house (and garden) is his castle.

Discussion – learners read the article in the website opposite. Why is it important for the law on

trespass to land to work efficiently and fairly?

Exam questions – both essay and hypothetical problem/case study questions can help learners to

develop their skills.

Questions from Past papers

Q1. Compare and contrast the torts of trespass to land and private nuisance. [October/November 2004]

Q2. ‘To enter another’s land without permission is never justifiable and is always actionable per se.’ critically assess this statement. [October/November 2006]

Q3. Compare and contrast the torts of private nuisance and trespass to land. [October/November 2008]

Q4. Entry to another’s land without permission is never justifiable and is always actionable per se. Discuss the above view of the tort of trespass to land. [May/June 2011]

Q5. Unauthorised entry to another’s land without permission is never justifiable and is actionable per se. Critically assess the extent to which you agree with this view of the tort of trespass to land. [October/November 2013]

Q6. The tort of trespass to land is direct, forcible and consequently actionable per se. critically evaluate the legal principles associated with the tort and assess the truth of this statement. [May/June 2014]

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