Trespass to Land/Nuisance (Tort UK)

That look in his eye can mean only one thing. TRESPASSERS WILL BE SUED.
That look in his eye can mean only one thing. TRESPASSERS WILL BE SUED.

Definition of Trespass to Land

Whilst there are various definitions of trespass to land it is easiest to pick up what it is from the case law. Nevertheless, for the purpose of differentiating it from the tort of nuisance, the following succinct definitions are provided by lawteacher.net

  1. Trespass to land
    Occurs where a person [intentionally] directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land.
  2. Nuisance
    An indirect interference with another's use and enjoyment of land, and normally requires proof of damage to be actionable.

Trespass to the Land

  • Bernstein v Skyviews
    Pictures were taken of the claimant's home from high above his land. The claimant sued for trespass to his land. Held: occupying air space of another's land is not a trespass if it is so high up that being there does not interfere with the owner's ordinary enjoyment of the land.
  • Bocardo SA v Star Energy UK Onshore Ltd
    Authority for the principle in Skyviews not extending to deep depths below one's land. The defendant had built pipes 1,000 feet below the claimant's land but this was still held to be a trespass despite not affecting the claimant's ordinary enjoyment of his land.
  • Smith v Stone
    D had been carried over the claimant's land by force. Held: not a trespass as D did not have control over his movement.
  • Buckle v Holmes
    D's cat entered the claimant's land and killed his pigeons and poultry. Held: animals that owners typically do not confine and which are left free to roam around without causing substantial damage, such as cats and dogs, cannot be the subject of trespass.
  • League Against Cruel Sports v Scott
    Authority for trespass to land being able to be committed negligently. Park J held that the master of a hunt would be liable for trespass if he negligently or intentionally sent dogs onto another's land. Note: this seems contrary to Buckle v Holmes unless we consider that hunting dogs are not merely domestically held dogs but of a variety more dangerous and capable of inflicting 'substantial harm' than the ordinary.
  • Southport Corp v Esso Petroleum
    Ship owners dumped oil into the sea which later washed up on the claimant's shore. Held not to be a trespass to land because the oil was dumped in order to save the crew (defence of necessity).

Private Nuisance

As well as the definition given by lawteacher.net above the following attempt by McBride & Bagshaw (2012), Tort Law (4th ed), 415 is highly recommendable (emphasis added):

A will have committed the tort of private nuisance in relation to B if he has created, authorised, adopted or continued a state of affairs that has unreasonably interfered, or is unreasonably interfering, with either the use and enjoyment of land in which B has a sufficient interest, or right associated with that land.

They proceed to explain (at 418) that the interference can occur by:

  1. Emanation resulting in physical damage
  2. Emanation resulting in reduction of amenity value
  3. Encroachment
  4. Obstruction interfering with a right associated with the land
  5. Affront resulting in reduction of amenity value of the land

Unreasonable Interference

  • Walter v Selfe
    Actionable interference: 'an inconvenience materially interfering with the ordinary comfort ... of human existence, not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions among the English people.'
  • Robinson v Kilvert
    'Reasonably robust occupier' test.
    C stored paper on his land. D's activities on his land below C's created a lot of heat which damaged C's paper. Held: no private nuisance claim can be made out because C's paper business was a 'delicate trade' - these cannot be expected to be in the minds of every land owner conducting his affairs. Only interference that would affect a 'reasonably robust occupier' amounts to being unreasonable.
  • McKinnon Industries v Walker
    Emanation of sulphur dioxide fumes were the basis of a successful private nuisance claim by a neighbour in the orchid growing business (a delicate trade) because they would have caused damage to any reasonably robust trade.
  • Gillingham DC v Medway (Chatham) Dock Co Ltd
    A local council first authorised the development of a dockyard and then launched a suit against it in private nuisance. Held: authorisation does not negate the ability to sue in private nuisance but does change the nature of the locality, any effect of the dockyard must be seen in light of the locality of it being a dockyard, not the locality it was previous to its authorisation.
  • Christie v Davey (1893)
    The defendant was irritated due to the neighbouring family constantly practising their musical instruments. In response, he performed a variety of acts such as mimicking what was being played with his voice, whistling and banging on the adjoining wall. Held: his deliberate acts were for the purpose of annoying his neighbours and thus were not a legitimate use of his land, amounting to a nuisance. An injunction was granted.
  • Hollywood Silver Fox Farm Ltd v Emmett (1936)
    The defendant deliberately shot specialised cartridges made to frighten animals in order to frighten the claimant's foxes which were being bred. Such shots made the foxes less likely to mate with each other. Held: this deliberate malicious act was a nuisance, even though fox-breeding is inherently a hypersensitive trade and reasonably robust trades would not have been so negatively effected: deliberate acts lessen the threshold for what amounts to 'unreasonable' conduct.
  • Bradford Corp v Pickles (1895)
    -The defendant interfered with water on his land in such a way as to reduce the effectiveness of the claimant's adjoining land's waterworks in a bid to sell his land at an increased price to that same neighbour. Held: no private nuisance can be established. The defendant had a right to the water and so could do whatever he wished with it because the neighbour did not have such a right to it.
    - Seemingly contradictory but can be distinguished from the above two cases on the basis that this is an obstruction case whereas they are both emanation cases. The claimant in Pickles had no right to the water and so could not complain about no longer receiving it, but in Hollywood Silver Fox and Christie the claimants had the general right of their land not being interfered with by an unreasonable emanation of noise.
    - From another perspective, this can be seen as the acknowledgement of invasiveness between adding/restricting something. Acting in a way that adds noise to another's land is unacceptable because you enter their sphere of their existence and actively interfere with it. Contrarily, acting in a way that restricts something is not invading their sphere of existence as much. This can be paralleled with the distinction in culpability of acts/omissions under the law of negligence.

Affront Cases

Occurs where the claimant's knowledge of something about the defendant's land interferes with the enjoyment of his land.

  • Birmingham Development Co Ltd v Tyler
    The claimant was afraid that a wall on his neighbour's land was unsafe. Held: this was not an 'affront' because it could not be established that there was a 'well-founded' fear of imminent collapse. Authority for there needing to be actual danger to justify fears.

Responsibility

  • Re v Moore
    D, a gun salesman, allowed his customers to shoot pigeons on his land. Large numbers of people who were not his customers accrued on nearby land to shoot at the pigeons. Held: D was responsible for the nuisance that the crowds created even though they were not his customers. Authority for the notion that one can be responsible for circumstances he did not intend to occur but which were expectable.
  • Leakey v National Trust
    Due to severe weather, a hill owned by D became dangerous to C's land. Held: this was a potential nuisance that D was obliged to take reasonable steps to counteract. The finances of D were factored into what amounted reasonable steps, and, being the National Trust, this turned out to be a lot. Moreover, the claimant's ability to protect his land himself or contribute financial help to the project was also considered.
  • Sedleigh-Denfield v O'Callighan
    Middlesex County Council, without consent of D (making it unlawful) installed a drainage pipe on D's land without a grate to prevent the pipe from blocking. The pipe blocked and caused huge flooding on D's neighbour's land. Held: D was liable for nuisance because he knew or should have known about the pipe but did nothing about it.
  • Holbeck Hall Hotel Ltd v Scarborough Borough Council
    D failed to take any steps to obviate the danger of a cliff on his land breaking off and crushing C's hotel beneath it. Held: D was only liable for the reasonably foreseeable harm of pieces of the cliff falling, not for the unlikely but realised event that had happened.

The Rule in Rylands v Fletcher

  1. Accumulation of something dangerous on D's land
  2. For non-natural use
  3. The dangerous thing must escape from D's land and cause reasonably foreseeable damage to another's land
  • Cambridge Water v Eastern Counties Leather
    D's factory lead to chemicals seeping into the earth and contaminating water being extracted via a borehole over a mile away. Held: Rylands v Fletcher could not be applied because it was not reasonably foreseeable that if the chemicals did escape they would harm C's land.
  • Read v J Lyons & Co
    C, an inspector at a munitions factory was injured by an exploding shell. Held: the rule in Rylands v Fletcher did not apply as the shell did not enter another's land. Instead this case concerned the laws on occupier's liability.
  • Transco plc v Stockport MBC
    Water escaped from one part of D's land to another. There a pipe held by C was threatened. Lord Scott held that even if C held an easement (a proprietary right) to run the pipe across D's land, the threat had still not reached C's land and so the rule in Rylands v Fletcher does not apply.

Sorry. This is not a dangerous enough escape.
Sorry. This is not a dangerous enough escape.

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