Right to Exclude

Question 1

Jacques v Steenberg

Answer 1

Facts: D delivered mobile home across P’s land despite P’s protests. Sues D for intentional trespass. Only alternative was a private road covered in snow requiring rollers. P had meetings with D employees day of to demonstrate his land, and the alternative road, on aerial map. Employee said assistant manager didn’t give a fuck and used truck to block town road to hide the route. D admits to trespass.

Held: Intentional trespass, nominal damages of $1, punitive damages of $100K. In certain situations of trespass, the actual harm is not in the damage done to the land, which may be minimal, but in the loss of the individual’s right to exclude others from his or her property and, the court implied that this right may be punished by a large damage award despite the lack of measurable harm.

Question 2

Dwyer v Staunton

Answer 2

Facts: Bulldozer couldn’t blow highway adjacent to P’s land so bulldozed across P’s land. D and associates drove through cleared trail, P owner warned them not to come back that way. D tried to return home different route, couldn’t get through, went across P’s land (drove through P’s gate).

Held: D within his rights to go through fence/gate, no unnecessary damage. Also, no damage by D to crops: likely they were already frozen/winter-killed/bulldozed.

A traveller who is lawfully using a public road has the right to go upon private land at places where the public way is impassable (doctrine of necessity)

Question 3

Harrison v Carswell

Answer 3

Facts: Employee D conducted strike/picket in front of store. Employer A took no direct action, shopping centre owner P told D she was trespassing. P asked D to move to public sidewalk, D refused.

Held (Dickson majority): If The Petty Trespasses Act is to be changed, should be done by the Legislature

Laskin (dissent): Members of public are privileged visitors whose privilege is revocable only upon misbehaviour or unlawful activity.

Question 4

Brownstone v Geller

Answer 4

Facts: P seeks injunction for D to remove bolts from B’s wall supporting a piece of wood. Wood supports D’s screened-in area in backyard, wood attached by bolts which go less than 3 inches into P’s brick. Some water accumulation near bolts, uncertain ifc caused by bolts. Parties have past beef.

Held: There must be a “level of minutia” below which courts shouldn’t respond. Although the trespass is technically ongoing, the nine bolts do amount to a trespass, so that that trespass apparently is a technically ongoing trespass. The mere fact there is a trespass does not warrant any affirmative action by the Court.

Question 5

Southwark London Borough Council v Williams

Answer 5

Facts: Squatters D hopped into empty houses owned by P. D justifies on grounds it’s duty of P to provide temporary accommodation for those in need (doctrine of necessity). The houses were boarded up by P, not thought worthy of repair.

Held (Denning): The circumstances of these squatters are not such as to afford any justification or excuse in law for their entry into these houses. Defence of necessity has very narrow application.

Davies LJ (conc): The law is suspicious of any remedies of self-help: necessity can easily become a mask for anarchy. 
Defence of necessity is for urgent situation of imminent peril
o	At most it would justify an initial entry, not an extended stay