Trespass to Land notes-book

Question 1

Definition of trespass to land

Answer 1

Royal Dublin Society v Yates
“…any unjustifiable intrusion by one person upon the land in the possession of another. The intrusion may be intentional or it may be negligent: in either case, it is actionable in the absence of lawful justification.”

Question 2

What does it protect?

Answer 2

• protects the interest of the plaintiff of having his/her land free from the unjustified physical intrusion of another.

Question 3

Actionable per se

Answer 3

• not neecessary for P to prove actual damages
  -actional trespass can occur where the incursion is limited
  -slightest crossing of boundary onto P land constitutes trespass

Question 4

Whelan v Madigan

Answer 4

actionable per se….
-crossing boundary may not be necessary: physical contact with land may suffice
-placing things or causing thing to cross boundary of land or reach boundary = trespass
HERE- damaging door by striking it without crossing boundary =trespass

Question 5

How must the interference be?

Answer 5

-direct rather than consequential
-difference between direct and indirect =not easy
-GREGORY v PIPER= rolling rubbish onto land= trespass
-LEMMON v WEBB= enchroachment of roots and branches of trees= nuisance (consequential not direct)
-D interefrence must be voluntary if not no trespass

Question 6

Onus???

Answer 6

when P establishes an act which physically constitutes a trespass, onus is on D to show he was neither negligent not interntional

Question 7

mistakes neighbours house for his own

Answer 7

=guilty of trespass- unless mistake brought by neighbours conduct
BASELY v CLARKSON held liable as he intentioanlly did the act of cutting the grass (albeit under a misapprehension) = invasion of P land

Question 8

elements of trespass to land

Answer 8

1. direct
2. intentional or negligent
3. interefrence
4. with P possession of land

Question 9

Constitution provides….

Answer 9

Article 40.5

“The dwelling of every cizizen is inviolable and shall not be forcibly entered save in accordance with law”

A forible entry may occur if permitted by law ( The People (AG) v O’Brien)

Evidence obtained by search incidental to lawful arrest is admissable even if made without valid search warrent

Question 10

How are search warrants obtained?

Answer 10

S.48(2) Criminal Justice (Theft and Fraud) Offences CAt 2001- issued by DC judge under reasonable grounds

Question 11

DPP v Forbes

Answer 11

-Gardai have implied (though rebuttable) authority to come onto forecourt of a dwelling (though not enter the dwelling itself) to see enforcement of law or prevent breach thereof

Question 12

Road Traffic Act 1994

Answer 12

-authorises Gardai for purposes of arresting person under this act to enter without warrant (using reasonable force if necessray) any place 9inlcuding curtilage of a dwelling but not dwelling itself) where a person is or expected to be

Question 13

Gardai powers

Answer 13

1. S6 of Criminal LAw Act 1997 sets out powers for enter and search of premises to effect arest
2. under Criminal Damage Act 1991- right to enter any place to arrest a person in respect of offenses under the act
3. can arrest without warrent under Domestic Violence Act 1996

Question 14

Abuse of right to enter land

Answer 14

a person can be considered to have abused his right of entry if he enters land for a purpose other than for which he has permission.

DPP v McMahon- gardai investigating offences, needed warrant, deemed trespassers, would have had right by implied invitation to enter premises to consume food or drink but because that was not purpose could not rely

Question 15

tresspass on highway

Answer 15

if the highway is used by a person for some other purpose than reasonable and uaual to use highway, that person may be a trespasser against the owner of the subsoil (rebuttably presumed to be owner of adjoining land) - Iveagh (Earl) v Martin

L v Ireland- misusing highway for purpose of intimindatinga householder by standing on public roadway and staring in at them intheir home can amount to a trespass.

Question 16

Law on pickets???

Answer 16

lawful to hold picket “at or near” a house or plce where a person resides or works or carries on business

pickets not protected by stautory authority will be a trespass

Question 17

Trespass by remaining on land

Answer 17

if a person remains on land after permission has ended= trespasser
failure of refusal to leave land upon request=trespass
occupier may use reasonable force to eject the person if he has allowed a reasonable time for the trespasser to leave.

Question 18

Trespasser ab initio

Answer 18

Where a person enters land under lawful authorityather than by private invitation, and they subsequently abuse of exceed that authority= trespasser ab innitio

trespasser form when they entered

limited to entry by authority of law rather than privtae invitation or licence

Question 19

Principle of trespasser ab initio

Answer 19

a person can only become a trespasser ab initio by act of positive misfeasance as opposed to mere nonfeasance.
(The Sixe Carpenters’ Case)

Question 20

Abuse after entry

Answer 20

the entry does not become a trespass ab initio if there remains an independent ground for the entry unaffected by the abuse
- Elias v Psmore- police lawfully entered to arrent a man but seized wrong documents =trespassers to the goods but not ab initio

Question 21

Webb v Ireland

Answer 21

two people who entered private land with the implied license of the owners to visit an acient church and tomb but dug intot he ground to remove valuable chalices = trespassers ab initio

Question 22

Trespass above surface of the land

Answer 22

direct infringment over the airspcase of a person’s land =trespass

Baron Bernstein of Leigh v Skyviews & General- D flew over house anf took photo. D not liable as courts couldnt find any support that landowners rights in the airspace above property extended to unlimited height.

held- right to airspace to such a height as is necessary for the ordinary use and enjoyment of land and structures upon it

Question 23

Trespass while flying/ in air

Answer 23

Air Navigation and Transport Act 1936- no action lies in respect of trespass or nuisance by reason of the flight of aircraft over property at a hight above ground

Question 24

Entry beneath surface of land

Answer 24

is actionable no matter how deep
may be trespass to tunnel beneath surface of land, to mine, to cave, to drive building foundations into soil….
no provision to contrary, owner of surface presumed to own underground

Bocardo SA v Star Energy UK Onshore- D extracting petroleum , pipes ran under P land, sought no permission, constituted trespass

“who owns land owns it up to the sky and down tot he depths”

Ireland under staute- state has right to most imieral resources in the ground

Question 25

Continuing Trespass

Answer 25

if person places object on the land of another, he or she will have committed a continuing trespass if they fail to remove it if person wrongfully does soemthing which dmaages the P land they will not have committed a continuting trespass conceptual difference in something that can be never be replaced and something that can be removed further action possible for continuing trespass but only one for damage to land - Clarke v MGW Railway

Question 26

Who may sue??

Answer 26

- possession of land entitles a P to sue as is essentially 'interference with possession' -mere use of land withour exclusive possession= not sufficient Hill v Tupper- dismissed because P did not have exclusive occupation

Question 27

What happens when two people assert occupation of the land?

Answer 27

Jones v Chapman- person who has the title is in actual possessiona nd other is tresspasser approved in irish case of Hegan v Carolan

Question 28

Profit a prendre

Answer 28

a person holding a legal or equitable interest in land in the nature of an easement or a profit a prendre may sur ein trespass for direct interference with that interest - Cronin v Connor generally no defence to a tresspasser that P possession of land is unlawful and rests with third party- Graham v Peat

Question 29

Defence of Consent

Answer 29

- P landowner has given permission, express or implied to enter land if entrant exceeds permission =tresspasser if landowner revokes the permission, the entrant may nto remain on the land irrespective of whether granted gratuitously or under contract

Question 30

Defense of Lawful Authority

Answer 30

person will not be a trespasser were they enter with lawful authority. If the entrant exceeds or abuses his or her authority they will become trespasser ab initio.

Question 31

Defense of Necessity

Answer 31

-defence in case of emergency eg state of war, armed rebellion, accident, fire, natural disaster, needing emergency services to enter a property (Dellway Investments v NAMA)

Question 32

Failed Necessiy

Answer 32

Southwark London Borough Council v Williams- rejected defence relied upon by squaters Dublin CC v Gavin- traveller trespassed onto P claiming no where else to go and subject to violence at last site rejected

Question 33

Defense of Statute: Criminal Law (Defence and Dwellings) Act 2011 s.2

Answer 33

-offers protection to housholders who use reasonable force against trespasserswhich they honestly believe to be justified to prtect their dwellings eg. trespasser comitting criminal act -they can use force that is reasonable in circumstances to protect themselves or third party form injury, assault, detention or death by criminal act or to protect property from destruction or damage or prevent the commission of a crime or assist in lawful arrest

Question 34

When does defense of statute not apply??

Answer 34

-force is used against member of Gardai, person assisting Gardai or lawfully performing a stat function - where housholder brings the situtaion about in which the force is used the person using force is protected if he or she honestly belives that the circumstances justify the force, even if objectively no such justification exists.

Question 35

tresspass to land definition

Answer 35

Trespass onto land arises where someone intentionally enters, remains on or causes anything to be placed onto, land in the possession of another without lawful justification.

Question 36

what constitutes land??

Answer 36

land included that which is attached to the land, and 'upwards unto heaven and by analogy, downwards into hell'.

Question 37

when does trespass ab initio arise??

Answer 37

1. when you've exceeded lawful authority 2. your authority came from a public place 3. you have no other valid authority to be there

Question 38

negligence vs trespass

Answer 38

generally if you merely increase the likihood that something comes onto the land this should give rise to an action in neg rather than trespass. (Guille v Swan) probs different if was today (baloon case)

Question 39

what happens with de facto possession???

Answer 39

when someone asserts a claim over property the question arises as to whether the person asserting the claim has a right to bring an action of trespass. answer yes they do Petrie V Owners of SS Rostrevor- failed but establish de facto principle.

Question 40

How is de facto possession established???

Answer 40

.. must establish an authority over the property through occupation or use

Question 41

what happens when owners exceed lawful authority

Answer 41

.. lawful occupier may have claim of trespass against the owner. Whelan v Madigan- landlord committed trespass when he damges door and letter box

Question 42

abuse of proprietry interest

Answer 42

allows you to bring a case where the interest is invaded Cronin v Connor - damaged interest in land by grazing cattle on land he had permissed to extract turf out of