C6A: Trespass

Question 1

As well as interference with one’s land and things (trespass to land), what else does trespass deal with?

Answer 1

Interfering with one’s person (trespass to the person).

Question 2

When would going on to land without the owner’s permission be permissible?

Answer 2

If there is some right of access for the public or if you have acquired a personal right to pass over the land to reach some land of your own, such as an easement.

Question 3

What is meant by the term ‘actionable per se’? Is it still relevant today? (One of the three characteristics that all forms of trespass share).

Answer 3

Actionable per se means that there doesn’t need to be proof of damage for the claim to be brought. This is different to negligence, which requires proof of damage before a claim is successful.

Realistically, in modern times, it is unlikely that an action for trespass will be brought unless there is also damage and thus a claim for more than nominal damages.

Question 4

What are the three characteristics that all forms of trespass share?

Answer 4

1. A trespass is actionable per se (without proof of damage)
2. A trespass is committed by a direct and immediate interference with the protected interest of the claimant in possession (bodily security, land or goods)
3. The act that constitutes the trespass is committed intentionally (meaning the step was intentional, even if they didn’t mean to trespass)

Question 5

What does ‘trespass is committed by a direct and immediate interference’ mean? (One of the three characteristics that all forms of trespass share). Give two examples.

Answer 5

An example would be simply walking across someone else’s land, though even the smallest interference would count. In Westripp v Baldock [1938], it was trespass when the defendant placed his ladder against the claimant’s wall. Placing objects on land will also meet this requirement.

Question 6

Could a landlord sue for trespass if the tenant is in possession of the land?

Answer 6

No, a trespass is only actionable by a person who is in possession of the land, i.e. immediate and exclusive possession. However, the landlord may be able to sue if they can prove that actual harm has been caused to the property which has damaged the value of their reversionary interest. (an interest that reverts back to the settlor of a trust once a beneficiary’s interest has come to an end.)

Question 7

What does ‘trespass committed intentionally’ mean? (One of the three characteristics that all forms of trespass share).

Answer 7

Usually, trespasses to land are self-evidently intentional in the sense that the defendant intended to be on the land in question, whether or not they knew who the land belonged to.

Question 8

What happens if the defendant lost their way or believed the land to be theirs in trespass?

Answer 8

This is not a defence against the ‘committed intentionally’ criteria of trespass. See Conway v George Wimpey & Co Ltd [1951], where the claimant got on a bus which was restricted to only employees of the defendant. The claimant didn’t know, but it was decided that they were trespassing, whether he knew it or not.

Question 9

If A and B pick up X bodily and throw them onto the claimant’s land, who is liable for trespass?

Answer 9

A and B committed the tort of trespass and not X. If a person’s presence on the land is involuntary, then they are not liable.

Question 10

Explain the difference between lack of knowledge, involuntary and negligent trespass and whether each are able to be sued for trespass.

Answer 10

Lack of knowledge: defendant didn’t know they were trespassing - still liable for trespass. See Conway v George Wimpy [1951] (getting a lift from a bus only for employees).

Involuntary: defendant was involuntarily placed on someone else’s land - not liable for trespass, but parties who placed defendant will be liable. E.g. X bodily placed on to land by A and B. A and B are liable, not X.

Negligently: defendant negligently trespassed - still liable for trespass, e.g. Hounds are negligently allowed on to claimant’s land and therefore are liable for trespass, see League Against Cruel Sports v Scott [1986].

Question 11

What must a claimant prove in order to prosecute a car that has unintentionally moved from the road to their land?

Answer 11

The claimant must prove negligence. See League Against Cruel Sports v Scott [1986].

League Against Cruel Sports v Scott [1986], where a hunt entered land after permission had been refused, the master of the hunt was liable in trespass if the hounds had been negligently allowed to enter the claimant’s land. If the decision is correct, it means the tort of trespass may be committed negligently. Whether by intention or negligence, they would be liable for trespass.

Question 12

List four ways in which trespass to land can be committed.

Answer 12

Trespass by Wrongful Entry
Trespass by placing objects on land
Trespass by remaining on the land
Trespass on the highway

Question 13

What kind of trespass would putting a hand through an open window be?

Answer 13

Trespass by wrongful entry.

Question 14

What is the Roman principle about how far a landowner’s property spans?

Answer 14

The landowner owns everything up to the sky and down to the centre of the earth.

Question 15

How are a landowner’s rights to the sky above their property restricted? Give 2 examples of things that did infringe a landowner’s rights and 1 that didn’t?

Answer 15

If someone trespasses on the airspace directly above the property, it is likely to be trespass. However, if an aircraft flies above a property that isn’t causing unreasonable interference, it will likely not be trespass.

+ Kelsen v Imperial Tobacco Co [1957] - erecting a sign on defendant’s property that projected over the claimant’s property, was trespass.

+ Anchor Brewhouse Developments v Berkley House [1987] - booms of cranes swinging over claimant’s property, was trespass.

• Bernstein v Skyviews Ltd [1978] - aircrafts can fly and take photographs of claimant’s property from a reasonable height, at such a height that would not cause unreasonable interference.

Question 16

What are the rules around trespass and aircrafts going over a claimant’s property?

Answer 16

1. Must be at a reasonable height/at such a height that would not cause unreasonable interference (Bernstein v Skyviews Ltd [1978]).
2. No action in trespass or nuisance will lie by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable. [S76 Civil Aviation Act 1982]
3. There is, however, strict liability for damage caused by people or things falling from an aircraft while in flight, taking off or landing. [S76 Civil Aviation Act 1982]

Question 17

How low down do the landowner’s rights span?

Answer 17

Originally, until the centre of the earth. However, the Supreme Court agreed that the owner of the surface is the owner of the strata beneath it, including any materials found there. This extends down to the point where physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. (Bocardo Ltd v Star Energy Ltd [2010])

Question 18

Can a landowner enter neighbouring property to carry out necessary works to the buildings on their own land?

Answer 18

The Access to Neighbouring Land Act 1992 makes provision for such a landowner to apply to the court for an access order which, if granted, will identify a fixed area of the adjoining land to which the rights of entry will apply and also the terms on which this defined access is to be made available.

Question 19

When does someone commit trespass by remaining on land? Explain the difference between gratuitous entry and contractual entry.

Answer 19

If they remain on land when their right of entry has ceased.

If the licence (permission) to enter is gratuitous and revocable at the will of the licensor, a reasonable time must be granted to the licensee to remove themselves and their property from the land.

If the licence is contractual – for example, to enter a cinema and watch the showing of a film – then it is irrevocable until the purpose for which it was granted and paid for is achieved, unless the licensee breaks the terms of the contract.

Question 20

When does someone commit trespass by placing objects on land?

Answer 20

If someone places any chattel (object) on the claimant’s land, it remains to be trespass for as long as the offending article remains on the land.

British Waterways Board v Severn Trent Ltd [2001] it was held that discharging water into the flowing watercourse owned by another amounted to a trespass.

Further, in Laiqat v Abdul Majid [2005] the defendants installed an extractor fan on their property. The fan projected into the claimant’s garden at a height of 4.5 metres above ground

Question 21

Can you trespass on the highway?

Answer 21

Everyone has a right to use the highway when travelling from one place to another. However, the owner of the subsoil has a right to claim for trespass on the highway for acts that went beyond ordinary passage.

Question 22

What kinds of things may be considered to be trespass on a highway?

Answer 22

It had been held previously that using a public highway to obstruct shooting on the adjacent private land is a trespass, as in Harrison v Duke of Rutland [1893]. Or using it in order to gain inside information on racehorse trials as was held in Hickman v Maisey [1900].

Question 23

Is it trespass to the highway if some people participate in a peaceful assembly on a highway?

Answer 23

No, so long as it was reasonable and caused no obstruction, seen in DPP v Jones [1999]. It was held that it was not a trespass to participate in a peaceful assembly on a highway so long as it was reasonable and caused no obstruction. It was suggested that any reasonable use of the highway not involving nuisance or obstruction was lawful.

Question 24

What are the three specific defences that can be raised to an action against them in trespass?

Answer 24

Licence
Justification by law
Necessity

Question 25

Can a person enter onto another’s land for a legitimate enquiry?

Answer 25

Yes. Trespass is not committed if the defendant enters the claimant’s land with the claimant’s express or implied permission, so any member of the public has an implied licence to approach premises with a legitimate enquiry, even if that enquiry has nothing to do with the occupier’s business or interests.

Question 26

Explain the specific defence of ‘licence’ for trespass.

Answer 26

Express or implied permission = no trespass

Legitimate query = no trespass

In this respect, police officer is same as member of public (see justification of law/Police Act 1984 for search etc)

Notices like ‘Keep out’ revoke implied permission to enter.

Licence exists until defendant exceeds terms of licence or claimant revokes licence

The licensee must be given reasonable time to leave the land.

Question 27

Explain the specific defence of ‘justification by law’ for trespass.

Answer 27

Justification by law = no trespass

E.g. police have powers under PACE 1984 to enter and search premises. Cash v Chief Constable of Lancashire Constabulary [2008] police officers entered premises to look for a horse they believed may have been stolen but they had no warrant to authorise their entry for that purpose. Although the police eventually withdrew from the premises and returned later with an appropriate warrant, the occupier was awarded £150 for injury to his feelings.

If entry was permitted by law but then the right was subsequently abused (must be wrongful act), they become a trespasser ab initio.

This rule does not apply to nonfeasance.

Question 28

Explain the specific defence of ‘necessity’ for trespass.

Answer 28

Necessary to enter land = no trespass

Must be no negligence on the part of the defendant contributing to state of necessity

E.g. campaigners trespassing weren’t allowed to use necessity or public interest as they were uprooting the crops for publicity, not for protection of the public.

Question 29

S76 Civil Aviation Act 1982

Answer 29

S76 Civil Aviation Act 1982 makes special provision for aircraft overflying land. No action in trespass or nuisance will lie by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable. There is, however, strict liability for damage caused by people or things falling from an aircraft while in flight, taking off or landing.

Question 30

Access to Neighbouring Land Act 1992

Answer 30

Access to Neighbouring Land Act 1992 makes provision for such a landowner to apply to the court for an access order which, if granted, will identify a fixed area of the adjoining land to which the rights of entry will apply and also the terms on which this defined access is to be made available.

Question 31

Police and Criminal Evidence Act 1984

Answer 31

Police and Criminal Evidence Act 1984 - police have powers to enter premises and search them, as opposed to approaching premises with a legitimate enquiry.