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Tort - Trespass

Updated on July 26, 2017

Trespass to land occurs when one person who does not have either implied or express permission enters the land of another. It is actionable per se and the proprietor of the land can turn to the court for assistance. Trespass to land can occur in various ways including mistakenly entering the property of another. In Basely v Clarkson (1681) the defendant while mowing his lawn accidentally entered the adjoining property and the plaintiff brought an action against the defendant in court. The court held that the defendant’s actions did indeed constitute trespass.

However, if the defendant was brought onto the land involuntarily i.e. without his or her consent than the person will not be deemed to be guilty of trespass but those who brought the plaintiff onto the land shall be deemed to be trespassers.

In Smith v Stone (1647) the defendant was carried onto the land by others and left there. The plaintiff, the lawful owner of the land brought an action in trespass and the courts decided that the defendant was not guilty. It was the people who had brought the defendant to the land against his or her will that were guilty.

Trespass also extends to placing an object, a chattel or an item on someone else’s land for example a signage without obtaining prior approval or consent. In Holmes v Wilson (1839) the defendants erected buttresses on the plaintiff’s land without obtaining prior permission. The plaintiff sued and was successful. The defendants were ordered to pay damages to the plaintiff.

However, despite being found guilty of trespass the defendants failed to remove the stone supports and the plaintiff sued again and was successful again. The court held that the defendants would be liable for each day the supports remained on the plaintiff’s land.

Similarly, in Konskier v Goodman ltd (1928) the defendants were builders who were employed to pull down the second storey of a house. They obtained the necessary permission and consent including that of the adjoining house owner because the work that was carried out would likely cause damage to the adjoining property and the defendants agreed to make good any damage to the house. As agreed the defendants made good on their promise but failed to clear up the rubbish from the construction works that was left in front of the adjoining house. The plaintiff, the owner of the adjoining house, brought an action in court.

The court in line with the decision in Smith v Stone (1647) decided that the defendants were guilty of trespass and that damages would accrue every day for as long as the rubbish remained in front of the plaintiff’s house.

Trespass to land can not only occur on the surface but also includes actions done below the surface like mining or excavation which extends into another’s land. In Bulli Coal Mining Co. v Osborne (1899) the defendants were miners and while excavating or tunneling underground dug through to the plaintiffs’ land and the aggrieved plaintiff sought redress in court. It was held that trespass also extents to any activity done below the surface of the land without first acquiring either implied or express permission from the legal owners of the land.

Trespass is not limited to intruding on someone else’s land and it also includes encroaching into someone else’s airspace. In Kelsen v Imperial Tobacco (1957) the defendant had erected a sign that protruded 4 inches into the plaintiff’s airspace and the plaintiff brought an action in court seeking an injunction to prevent the defendant from intruding into the plaintiff’s airspace. The court granted the injunction on the basis that the sign tampered or fettered with the plaintiff’s proprietary interest.

While in may seem trivial, intruding into someone’s airspace is in reality quite serious. Probably the most well-known incidence with regards to one party entering into the air space of another without permission, was the downing of Korean Airline Flight 007 which intruded on Russian airspace just west of Sakhalin Island.

Trespass also extends to owners of animals. Owners must take reasonable steps to ensure that their animals remain on their premises. In League Against Cruel Sports v Scott (1985) the defendant was an owner of foxhounds and his pets strayed on to a neighboring property belonging to the plaintiff and the plaintiff sued.

The court held that owners of animals were under a duty to ensure that their animals remained on their property and in the event that the animals strayed onto another property or an adjoining property than the owner will be guilty of trespass. The plaintiff was successful.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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