Trespass To Land (Copy)

Introduction to Trespass to Land

• Definition:
  • Trespass to land is an intentional and unlawful interference with land belonging exclusively to another person.
  • Differs from private nuisance as it focuses on the protection of possession and property rights, not the loss of enjoyment.
• Actionability:
  • Trespass is actionable per se, meaning it does not require proof of damage.
• Broad Definition of Land:
  • Includes:
    • The ground surface.
    • Subsoil beneath the land.
    • Airspace above the land (to a reasonable height).

Elements of Trespass to Land

1. Intentional and Direct Interference:
   • Interference must be deliberate or occur due to direct physical intrusion.
   • Even mistaken belief about land ownership does not absolve liability.
   • Example Case: Basely v Clarkson (1682):
     • Defendant mistakenly mowed neighbor’s grass; mistake was no defense.
2. Possession of Land:
   • The claimant must have possession of the land.
   • Includes owners, tenants, and sub-tenants but excludes licensees or lodgers without control over access.
3. Unlawful Entry:
   • Occurs when a person enters or remains on land without the owner’s consent or exceeds permissions granted.
   • Key Principle from The Calgarth (1927):
     • Permission to use land does not extend to all possible uses (e.g., sliding down bannisters).
4. Airspace and Subsoil Trespass:
   • Airspace:
     • Protected to a height necessary for ordinary land use.
     • Example: Kelsen v Imperial Tobacco Co. Ltd (1957):
       • A protruding signboard was ruled a trespass.
   • Subsoil:
     • Includes unauthorized drilling or digging beneath the surface.
     • Example: Star Energy Weald Basin Ltd v Bocardo SA (2010):
       • Drilling oil wells into subsoil constituted trespass.

Types of Trespass

1. Wrongful Entry:
   • Direct physical crossing onto another’s land, even by mistake.
2. Remaining on Land:
   • Staying on land after permission has been revoked.
   • Includes cases where actions exceed the agreed-upon use.
3. Placing Objects on Land:
   • Intentionally placing or allowing items to cross property boundaries.
   • Example: Overhanging branches, debris thrown onto land.
4. Continuing Trespass:
   • Failure to remove unlawfully placed objects results in repeated claims for each day the trespass continues.
   • Example: Holmes v Wilson (1839):
     • Defendants built supports on another’s land and paid damages for each day they remained.

Defenses to Trespass

1. Consent:
   • Express or implied permission negates trespass liability.
   • Entry exceeding granted permissions, however, remains actionable.
2. Necessity:
   • Used to justify entry in emergencies to prevent greater harm.
   • Rarely successful as courts carefully scrutinize necessity claims.
3. Statutory Authority:
   • Actions authorized by law cannot constitute trespass.
   • Example: Permissions granted for specific infrastructure projects.

Remedies for Trespass

1. Damages:
   • Awarded even without physical harm due to the actionable per se nature of trespass.
   • Substantial damages require proof of significant interference.
   • Aggravated damages may be granted for conduct causing mental distress or injury to feelings.
2. Injunctions:
   • Often sought to prevent or stop continuing trespass.
   • Tailored to specific circumstances of the case.
3. Ejectment:
   • Reclaims possession from unlawful occupiers (e.g., squatters).
   • Supported by criminal legislation in residential cases.

Statutory Influences on Trespass

1. Civil Aviation Act 1982:
   • Excludes liability for aircraft flying at a reasonable height.
2. Infrastructure Act 2015:
   • Legalizes deep-level fracking operations beneath private land, restricting claims for trespass.
3. Legal Aid, Sentencing, and Punishment of Offenders Act 2012:
   • Criminalizes specific trespass acts, such as residential squatting, while leaving civil trespass remedies intact.

Evaluation of Trespass to Land

1. Effectiveness:
   • Protects property rights robustly and deters unlawful intrusions.
   • Injunctions reinforce claimants’ rights effectively.
2. Limitations:
   • Harsh on defendants due to its actionable per se nature.
   • Recent legislation limits its scope, especially regarding underground activities like fracking.
3. Relevance:
   • Continues to address modern disputes, such as drone use, while maintaining foundational property law principles.