Torts Connected to Land: Trespass to Land

 L.O;

1. Define trespass to land
2. State the essential elements of a trespass to land
3. Explain the requirement for direct interference with the land
4. Explain the requirement for voluntary interference
5. Explain that trespass can be innocent
6. Explain that trespass is actionable per se
7. Explain the main defences to trespass
8. Explain the main remedies to trespass
9. Identify the introduction of trespass to criminal law

Definition

Trespass to land can be defined as the unjustifiable interference with land which is in the immediate and exclusive possession of another

The Essential Elements of Trespass to Land

There are four essential elements:

1. There is direct interference with the land
2. The interference must be voluntary
3. No need for the defendant to be aware that he/she is trespassing
4. No need for the claimant to experience harm or loss

Direct Interference

• Trespass requires direct interference with land such as physical entry to the land, throwing something onto the land or, if given the right to enter the land remaining there, when the right has been withdrawn
• For instance, if a person plants a tree and it overhangs a neighbouring property, it is indirect interference and more likely to be a private nuisance and not trespass. However, if a person cuts down a tree and throws the cut branches into his or her neighbour's garden, then it is direct interference and is likely to be a trespass
• Placing things on a person's land is also trespass

Southport Corporation v Esso Petroleum [1954]

• A small oil tanker ran aground due to carrying a heavy load and a steering fault in poor weather conditions. Oil was deliberately discharged in order to free the tanker. The oil drifted onto the claimant's land and a marine lake. The claimant brought an action for nuisance, negligence and trespass
• Held - The Court of Appeal decided that the defendants were liable for negligence
• The defendants were not liable for trespass because the discharge of oil was not done directly on their foreshore, but outside in the estuary. It was carried by the tide on to their land, but that was only consequential, not direct

Voluntary Interference with Land

• It can only be trespass to land if the person has voluntarily entered the land
• In Stone v Smith (1647) it was held that a person who was forcibly carried onto land by other persons was not trespassing

Awareness of Trespassing is Not Needed

• An innocent trespass is still a trespass. Mistake is no defence
• In Conway v George Wimpey & Co [1951] it was held by the Court of Appeal that a person could be liable for trespass even if he is mistaken about the ownership of land or wrongly believe he or she has permission to enter the land

Conway v George Wimpey & Co Ltd [1951]

• One of the defendant's lorry drivers had given a lift to the claimant who worked for another company. Both were working on an aerodrome. This was expressly prohibited by company rules. The claimant claimed that while dismounting from the lorry he was injured due to the negligence of the driver
• Held - The Court of Appeal held that because there was no proof that the defendant knew or must have known that the passengers from other companies were being given lifts, the claimant was a trespasser while on the lorry and as a result the defendants were not under any duty of care to him

No Need for the Claimant to Experience Harm or Loss

• Trespass to land is actionable per se (per se = in itself in latin)
• This means that there is no need for the defendant to have caused the claimant any damage or loss

Cuis est solum, eius est usque ad coelum et ad inferos

• This is Latin for 'who owns the land, owns to the heavens and down to hell'
• It is controversially used to explain the common law principle that ownership of land includes the air above and what is below the ground. This principle has been restricted through precedent and statute

Airspace

• In Bernstein v Skyviews and General Ltd (1977) the defendants had flown over the claimant's land to take an aerial photograph of his property which they then offered to sell to him
• HELD - The High Court stated that there was no trespass because the claimant did not have an unlimited right to all the airspace above his land but only the right to that airspace as was necessary for the ordinary use and enjoyment of his land buildings
• Anchor Brewhouse v Berkely House Developments (1987):
• Trespass occurred when the arm of a crane routinely swung over the claimant's property - thereby violating the airspace above the claimant's house

Below the Surface of Land

• In Star Energy Weald Basin Limited v Bocardo SA [2010], the Supreme Court held that the defendants had trespassed when, from an adjacent land, it had vertically drilled oil wells that were 244 metres to 853 metres below the surface of the claimant's land

Infrastructure Act 2015

• Since the Infrastructure Act 2015 s.43, land that is 300 metres below the surface (deep level land) can be exploited for "the purposes of exploiting petroleum or deep geothermal energy" without liability for trespassing
• Why is the Infrastructure Act 2015 s.43 controversial?
• It enables companies engaged in fracking to install pipes to transport the gas under private land without fear of incurring liability for trespass

Possession

• Possession does not mean ownership. In a rental scenario, it is always the tenant and not the owner/landlord who can sue
• For trespass to occur, you do not need to show that a boundary has been crossed, just that you have made physical contact with the land
• Placing things on a person's land can also amount to trespass, for example:
• Growing a creeping plant up the wall of a neighbour
• Leaning a bike against a shop window
• Stacking rubbish up against a neighbour's wall

Animals Straying onto Land

• The League Against Cruel Sports v Scott (1985)
• The League had bought areas of Exmoor and created a nature reserve and sanctuary for deer.
• The hunt repeatedly allowed their dogs to stray onto the land such that the claimants successfully obtained an injunction  to stop this
• Intention wasn't necessary, but it makes an injunction easier to obtain if it's an obvious pattern of behaviour

Cases

• Hickman v Maisey (1900)
• Claimant owned land that racehorses were being trained on
• The road the defendant travelled on crossed the claimant's land
• He stopped to observe the horses
• HELD - Trespass. Wouldn't have been if the defendant had been using the road for its normal purpose, but the particular activity exceeded this purpose
• DPP v Jones (1999)
• Protestors at Stonehenge were initially deemed to be trespassing for the same reason as in Hickman
• They weren't using the highway as a highway
• BUT on appeal they were found not liable as they had not acted in a destructive way, nor had they prevented other highway users from using the road
• City of London v Samede (2012)
• A camp outside St Paul's remained in place for a long time. The camp started out as a protest, but then took on a permanent residency at the site
• Defendant charged with trespass, and used the Human Rights right to demonstrate as a defence (under the ECHR)
• HELD - there is the right to demonstrate, but this does not allow you to interfere with the rights of other highway users and the right to enjoyment of the owner/occupier

Continuing Trespass

• Trespass doesn't have to be momentary - sometimes it can go on for years
• This happens especially in relation to things placed on the land such as shipping containers and sheds etc
• The law allows the defendant to be sued for the interference that lasts as long as the trespass. In terms of damages, this is hard to quantify, but a court will resort to punitive and exemplary damages to address the issue
• Holmes v Wilson (1839)
• Damages were payable in trespass for as long as buttresses built to contain a road that had been built on a claimant's land remained in place

Trespass by Relation

• This is what occurs when someone takes possession of land, which is then subsequently trespassed by the defendant
• The law states that you can sue for damages to cover the period from when possession first started and not when the nuisance began

Trespass Ab Initio

• 'Ab initio' is Latin for 'from the beginning'
• This is a form of trespass that occurs when a person enters land with authority given by law rather than with the permission of the person possessing the land subsequently commits an act that is an abuse of that authority
• The authority is cancelled retrospectively and the entry is deemed to have been a trespass from the beginning
• This type of trespass action was often used in cases against the police who exceeded the authority given to them with a search warrant when seizing stolen goods during a search of the premises
• Such an action may mean damages would be assessed on the fact that the police's whole conduct, rather than just the abuse of authority, was tortious
• Precedent and statute law have increased the power of the police when searching premises so such actions are rarely successful today and therefore, some textbooks regard trespass ab initio as having little relevance to English and Welsh law today
• However, actions for trespass ab initio are more common in other common law jurisdictions such as the USA. 
• The Six Carpenters (1610)
• They had failed to pay for a second round of wine, and the court initially held that this rendered their entire stay in the pub a trespass
• On appeal, the court said that a trespass based on an omission could not amount to a trespass
• Cinnamond v British Airports Authority (1980)
• The airport was trying to weed out taxi drivers that overcharged customers from the arrivals terminal
• Held that their wrongful picking up of passengers exceeded their permission to be there and made their trespass ab initio
• Elias v Pasmore (1934)
• The police collected evidence that was outside the scope of the warrant they had been granted by the court
• HELD - the entry amounted to trespass in regard to the illegally acquired items, but it did not undermine the overall authority granted by the warrant for them to enter the premises in the first place
• Chic Fashions (West Wales v Jones)(1968)
• Chic Fashions were accused of selling stolen designer clothes
• The police had a warrant to search the shops and home of the owner, but took items that were not identified in the warrant
• HELD - the entry authorised by the warrant was not illegal or wrongful
• Even though the police wrongly took items that had not been stolen, warrants allow the police to seize anything they reasonably believe to be stolen, so they do have some room for manouvre

Intention

• The courts decree that the very act of walking denotes an intention to move onto land
• Basely v Clarkson (1681)
• The act that led to the trespass (mowing grass) was an intentional one. This was all that was required
• League Against Cruel Sports v Scott (1985)
• The intention to engage on the activity (hunting with hounds) that led to trespass was sufficient in order to establish trespass
• River Wear Commissioners v Adamson (1879)
• A storm threw a boat that was being steered by the defendants against a harbour wall, damaging it
• HELD - Whether the trespass is accidental or mistaken does not matter. Liability for trespass will still be incurred

Defences

The following are the main defences to trespass to land:

1. Legal authority (or justification by law)
2. Consent (sometimes referred to as license) including contractual license
3. Necessity

Defences: Legal Authority

A person is not liable for trespass if he/she has legal authority permitting them to be on that land. Four examples are:

• The Countryside and Rights of Way Act 2000 gives the public certain rights of access to land provided that they comply with certain statutory restrictions
• The Police and Criminal Evidence Act 1984 gives constables certain rights to enter land to make arrests and to search premises
• Rights of way established under the common law. Rights of way are recorded on 'definitive maps' prepared by a local authority
• Common land which is land where although it might be owned by someone else, certain people have rights of access through custom for a particular purpose such as to graze livestock or cut peat for fuel

Defences: Consent

• A license to enter land can be received with either the express or implied consent of the person possessing the land
• Implied consent can be given in a number of ways. For instance, at the front of my house is a pathway to my front door which has a letterbox and a doorbell. I have given implied consent for persons to walk on my path and come to my front door and give me a letter or ring the bell to attract my attention
• A person becomes a trespasser once express or implied permission is withdrawn or if a person exceeds the limits of the permission. The defence of consent (or license) can no longer be used once permission is withdrawn
• For instance, although there may be implied permission for someone to come to my front door and deliver a letter, there is no implied permission for that person to come into my back garden or enter my property
• Even if there is a contractual license, this can be withdrawn. If, having bought a cinema ticket, you are asked to leave the cinema, you must do so or you will become a trespasser. In Wood v Leadbitter (1845) a man was ejected from a horse racecourse despite having bought a ticket. It was held that his contractual license could be revoked, making him a trespasser
• If having paid, you are asked to leave, you might have a remedy under the law of contract

Defences: Contractual License

• A contractual license to enter land covers situations when a purchaser receives permission to be on land as part of a purchase. For instance, if I buy a cinema ticket to see a film, I receive a contractual license to go to the cinema
• Where a licence has been revoked for any reason, you as the occupier must allow a reasonable time for the defendant to get themselves or their property off of your land, after which, trespass will occur

Defences: Just Tertii

• This is a defence when you can show that the land that you have supposedly trespassed over or onto does not actually belong to the claimant, but to someone else
• Doe d Carter v Barnard (1849)
• Here, a landlord granted a lease to a tenant
• He did not own the land that he granted the lease on, and therefore had no right to do anything with the land concerned
• HELD - jus tertii could usually be used, but not in the case of tenant and landlord

Defences: Necessity

• Necessity has two forms: private and public necessity
• Private necessity would involve an act needed to protect your own property against the threat of harm. Public necessity would involve an act to protect the wider public against harm
• The case of law of necessity when applied to trespass is uncertain. The general rule seems to be that there must be an actual danger and the acts of the defendant must be reasonable in light of all the facts
• In Rigby v Chief Constable of Northamptonshire [1985], the police had fired a CS gas canister into a shop to force a dangerous psychopath out. The gas canister caused the shop to catch fire. The police had not arranged for adequate fire-fighting equipment to be available. The shop was burned out. A claim was brought for negligence under the Rule in Rylands v Fletcher and trespass
• The High Court held that the police were liable for negligence for failing to provide adequate fire-fighting equipment
• However, the judge rejected liability for trespass, arguing that the defence of necessity was available in an action for trespass because there was no negligence on the part of police in creating or contributing to the necessity. They did not create the psychopath
• The judge also rejected liability under the Rule in Rylands v Fletcher because the rule applies only to an 'escape' and 'probably' does not apply to the intentional or voluntary release of a dangerous thing
• In Esso Petroleum v Southport, a ship's captain discharging oil from his tanks to protect his ship and the lives of his crew was not guilty of the trespass of oil onto the shoreline as a result
• Monsarato v Tilly (1999)
• Defendants entered claimant's land and pulled up crops on the grounds of public interest
• HELD - the fact that the defendants had only pulled up certain crops made it clear that they were trying to publicise their aims and their group. They obviously weren't doing it for public interest

Remedies to Trespass to Land

• Damages and injunctions are the usual remedies for trespass to land. Please see the presentation on tort remedies for details on these
• Orders for Possession: these are a court order and covered by the Civil Procedure Rules Part 55. They are issued by a court following a successful 'possession claim against trespassers'. The Order will instruct the defendant to leave the land by a particular date
• Self-Help (sometimes known as 'abatement'): this involves the common law right of a land owner or occupier to remove the trespasser themselves. This "self help" remedy consists of a person using "reasonable force" to remove trespassers. It is not available if the trespass is on a residential property

Only Reasonable Force Allowed:

• Collins v Renison (1754)
• A trespasser up a ladder was 'shaken off' the ladder from a low height, causing the defendant to fall to the ground. It was held to be unreasonable force. In cases like this, where the force used is unreasonable, it can amount to a non-fatal offence against the person

Ejectment

• This is a formal court procedure where you apply to the court for an order to get possession of the land back - this is especially useful against squatters, even if the claimant cannot identify whoever is in possession

Mesne Profits

• Special kind of court action which allows the claimant to recover from the defendant any profits that the latter has earned from wrongfully occupying the land. It also allows the claimant to recover sums in damages representing the costs of repair and court recovery
• Farra Leongreen (2017)
• Defendant remained in a flat after the lease expired, and the courts granted the claimant the right to recover the mesne profits of rent that he would have earned from a paying tenant - as well as the cost of repairing the flat as the defendant had left it in a terrible state

Distress Damage Feasant

• This is another way of saying that you can keep someone else's property that causes damage on your land until the damage has been paid for. E.g; a football that broke a window

Possession Claim Against Trespassers

The Civil Procedure Rules 55.6 state:

"Where, in a possession claim against trespassers, the claim has been issued against 'persons unknown', the claim form, particulars of claim and any witness statements must be served on those persons by:

(a)

(i) attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible and

(ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to 'the occupiers' through the letter box; or

(b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to 'the occupiers'

Trespass in Criminal Law

• Trespass originates in civil law
• In recent years, Parliament has grown concerned by many incidents of trespass by protestors, hunt saboteurs, squatter and those attending open-air raves
• A number of statutory offences involving trespass have been created such as the offences of aggravated trespass and squatting in a residential building

SIDE NOTE - A detailed knowledge of these offences is not required, only a general awareness that in recent years elements of trespass have entered the criminal law

Aggravated Trespass

• Under the Criminal Justice and Public Order Act 1994 s.69 a person commits the offence of aggravated trespass if they trespass on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by them to have the effect:
• Of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity
• Of obstructing that activity or,
• Of disrupting that activity
• Under this order, trespass becomes both a tort and criminal offence in the cases of certain political demonstrations e.g Anti-Hunt activists. The complaint has been that this infringes rights under the Human Rights Act and that it criminalised legitimate activities

Offence of Squatting in a Residential Building

Under the LASPO 2012 Act s.144 a person commits a criminal offence if:

• The person is in a residential building as a trespasser having entered it as a trespasser
• The person knows or ought to know that he or she is a trespasser and
• the person is living in the building or intends to live there for any period