Trespass

Question 1

Define the tort of trespass.

Answer 1

Unjustifiable interference with the possession of land, which is actionable per se.

Question 2

Conway v George Wimpey & Co Ltd

Answer 2

Entry upon another’s land is tortious whether or not D knows he is trespassing.

Question 3

Smith v Stone

Answer 3

Where D is thrown or pushed, there is no act on his part, so there is no liability for trespass (cf Gilbert v Stone, mere threats not enough)

Question 4

League against Cruel Sports v Scott

Answer 4

In the event of trespass by animals, the owner will be liable if for NEGLIGENT TRESPASS-

a) He intended the animals to enter the claimant’s land
b) He knew there was a real risk they would enter and their entry was caused by his failure to exercise proper control of them

Question 5

What interest is required to bring a tort of trespass?

Answer 5

Possessory interest is required, with physical presence or de facto control being insufficient (landlords cede possession to tenants, but not to licensees).

Question 6

What type of interference is required?

Answer 6

The injury must be direct and immediate. For indirect and consequential damage the remedy will most often lie in nuisance or negligence (e.g. Smith v Giddy, roots)

Question 7

Anchor Brewhouse Developments

Answer 7

Interference with airspace by something fixed to D’s land and overhanging C’s land is trespass

Question 8

Bernstein

Answer 8

If the nterference with C’s airspace is by something not fixed to D’s land, C’s rights in the airspace extend only to such a height as is necessary for the ordinary use and enjoyment of the land and its structures

Question 9

Holmes and Wilson

Answer 9

Trespass may be continuing, giving actions from day-to-day so long as it lasts (so D may be further liable for not removing a trespassing thing).

Question 10

3 defences to trespass

Answer 10

1. Licence
2. Lawful Authority (e.g. police powers)
3. Necessity (public, private and coming to the aid of someone whose person or property is in immediate danger)

Question 11

Common Remedies

Answer 11

1. Ejectment action (order for possession)
2. Mesne Profits (loss from being kept out of possession, based on “user principle”)
3. Injunction to restrain continuing trespass

Question 12

Hemmings

Answer 12

Landowner will not be civilly liable if he uses only necessary force to remove a trespasser and his property.