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Trespass to land, nuisance, and the rule in Rylands v Fletcher
Trespass to land
Trespass to land = unjustifiable interference with the possession of land.
Entry upon another's land is tortious regardless of whether the entrant knows that he is trespassing
(Conway v George Wimpey & Co Ltd (1951)), even if D has lost his way or believes the land is his.
However, D is not liable for involuntary entry (when he is thrown or pushed onto another's land) bc there is no act (Smith v Stone (1647)). Where land adjoining the highway is unintentionally entered
(e.g. due to a crash), C must prove D was negligent (River Wear Commissioners v Adason (1877)).
Entick v Carrington (1765) - Trespass = actionable per se (i.e. regardless of whether C has suffered damage), but an action is only normally brought without damage if C wishes to deter persistent trespassing or there is a dispute about boundaries or rights of way.
Physical presence ≠ sufficient, e.g. owner of a house possesses it, not the lodger (Allan v
Liverpool Overseers (1874)). Also, continuous physical control is not necessary (a person does not lose possession of their house when they go on holiday).
A lessor of land gives up possession to his tenant tenant alone can bring an action for trespass. Lessor can only bring proceedings for wrongful entry if it has caused permanent damage to the land (reducing the value of his reversion) (Ward v Macaulay (1791)).
While having a legal interest in the land is not necessary, "in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land"
(Slade J in Powell v McFarlane (1977)).
The immediate right to possess ("constructive possession") is the lawful right to retain possession when one has it, or to acquire it when one has not. Once a person entitled to immediate possession actually enters upon the land and so acquires possession, he is deemed to have been in possession from the moment that his right to it accrued this fiction (trespass by relation) means that C can sue for acts of trespass (plus damages)
committed while he was actually out of possession (see Dunlop v Macedo (1891)).
For trespass, interference with another's possession of land must be direct + immediate
(i.e. not indirect or consequential). E.g. D walks onto C's land; D throws X onto C's land; D
allows his cattle to stray onto C's land; D plants tree on C's land all trespass. D plants tree on his own land and the roots project into C's land nuisance (Smith v Giddy (1904)).
Trespass on a highway
- It is not trespass to participate in a peaceful assembly on a highway, provided it is reasonable and causes no obstruction (DPP v Jones (1999)). Since only the possessor can complain of trespass, other highway users still owe the same DoC to trespassers on the highway (Farrugia v GW Ry (1947)).
Trespass to subsoil
- Any intrusion upon the subsoil may amount to trespass. The subsoil and surface may be possessed by different persons (e.g. A and B, respectively).
- Cox v Glue (1848) - Hence, walking on land only affects the surface (trespass against
B), digging affects both the surface and subsoil (trespass against A and B), tunnelling
only affects the subsoil (provided the entrance and exit holes are in one's own land
trespass against A).
Interference with airspace
- An advertising sign erected by D on their own property which projected into the airspace above C's shop created a trespass (Kelsen v Imperial Tobacco Co).
- Didow v Alberta Power (1988) - A landowner's rights over the airspace above his property only extend to such a height as is necessary for the ordinary use and enjoyment of the land and structures on it, so that the flight of an aircraft "several hundred feet" above a house ≠ trespass.
- s76(1) Civil Aviation Act provides that civil aircraft which fly at a reasonable height do not commit trespass. s76(2) CAA provides that if material loss/damage is caused to any person or property by, or by a person in, or an article or person falling from an aircraft while in flight, taking off or landing, then, unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered,
damages are recoverable without proof of negligence or intention or other cause of action (as if the loss/dmg had been caused by the wilful act, neglect or other default of the owner of the aircraft).
- Trespass may be "continuing" gives rise to actions from day-to-day so long as it lasts. Transfer of the land by the injured party does not prevent the transferee from suing for continuing trespass (Hudson v Nicholson (1839)).
- Failing to remove something from land which was lawfully there to begin with but then caused damage to the land may attract liability; an action lies if the thing does damage to the land after it ought to have been removed (Konskier v Goodman Ltd
- However, there is no trespass if D merely omits to restore land to the same condition in which he found it (apart from removing anything he put on it), e.g.
failing to fill up a pit he dug on his neighbours land liable in trespass for original digging but not for continuing trespass for allowing it to remain there.
D may have a license = "that consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful"
(Sir Frederick Pollock). Licenses preclude liability for a consent-requiring act, giving the licensee a right in personam against the licensor.
Seeff v Ho (2011) - The acts of the licensee must not exceed the terms of the license.
A person is not a trespasser if he is on land with the permission (express or implied) of the possessor (see Robson v Hallett (1967)), who may exclude anyone from entering upon the land regardless of whether he has good reason or not.
A bare license (one granted otherwise than for valuable consideration) may be revoked at any time, at which point the licensee becomes a trespasser but is allowed a reasonable time to leave and remove his goods. Some contractual licenses = irrevocable.
Cornish v Stubbs (1870) - After revocation the licensee becomes a trespasser but must be allowed a reasonable time in which to leave and to remove his goods.
A licence coupled with an interest is irrevocable bc it confers a right in rem to something when you have entered, e.g. a tree cut down on the licensor's land (Thomas v Sorrell
(1672)). Until the tree is carried away the license is irrevocable (Wood v Leadbitter (1845)).
Winter Garden Theatre (London) Ltd v Milleniu Productions Ltd (1946) - Whether a contractual license not coupled with an interest is irrevocable is a question of construction of the contract in light of the relevant and admissible circumstances. Where a contractual license is granted for a limited period and for a definite purpose it is irrevocable until the accomplishment of the purpose.
If a license has been executed, the licensee cannot be compelled to undo what he has lawfully done. An executed license is only irrevocable where the license can be construed as authorising the doing of exactly what has been done.
Public law may restrict the power of a public body to revoke a licence to enter its premises.
This does not apply to the owners of 'quasi-public' places such as shopping malls.
Justification by law
The most important statutory powers for the police are given in the Police and Criminal
Evidence Act (PACE) 1984:
- s17: A constable may enter and search premises for the purpose of arresting a person for an indictable offence (plus various other purposes).
- s18: A constable may enter premises after an arrest for an indictable offence and search for related evidence.
- When lawfully on the premises, a constable may seize anything which he reasonably believes to be evidence of any offence, provided he has reasonable grounds to believe it would otherwise be concealed, destroyed, etc.
- A police officer has a power of entry to premises to prevent a breach of the peace
(Thomas v Sawkins (1935)).
Private persons may be justified when entering another's property when doing so to prevent a serious offence (Handcock v Baker (1800)). Other statutes also authorise other forms of entry, e.g. accessing neighbouring land to carry out maintenance where entry is necessary to do so.
Where entry is justified by law (not the land's possessor) and the actor abuses his authority,
he becomes a trespasser ab initio and his act is deemed unlawful from the very beginning,
however innocent his conduct may have been prior to the abuse (Six Carpenters' Case
Abuse must be a positive act, not a mere omission (Delta Holdings Ltd v Magrum (1975)).
However, it now seems that partial abuse of authority does not render everything done under it unlawful. The law may withhold judgment on the lawfulness of an act for a time,
allowing it to depend on subsequent events (Southam v Smout (1964)).
The person entitled to possession can enter/re-enter the premises but the Criminal Law Act 1977 makes it an offence for anyone to use/threaten violence for the purposes of securing entry to any premises occupied by another.
However, the CLA does not change that a landowner is not civilly liable if he uses no more force than necessary to remove the trespasser and their property from his own land
(Hemmings v Stoke Poges Golf Club (1920)). Action for the recovery of land
A person dispossessed of land can recover it specifically with an action for the recovery of land. He may obtain an order for possession against persons in occupation of his land if they entered or remained there without his license or consent, whether or not he is able to identify those persons.
- C must show that he has a better title than D, and usually prior possession is evidence of title (paper title is sufficient but not necessary).
D may plead the defence of jus tertii if he can prove that a 3rd party has a superior right to C.
- This defence cannot be used in an ordinary action of trespass, but it ought to be allowed to the defendant in an action for the recovery of land.
- However, where C relies on prior possession of the land, the defence of jus tertii cannot be raised (see Mayor of London v Hall (2010)). Regardless, D cannot rely upon jus tertii where he has acquired possession from C himself. There is a rule that
D is estopped from denying the title of the person from whom D derived his interest,
e.g. tenant cannot deny landlord's title.
The action for mesne profits lies for damage which C suffered through having been out of possession of his land, enabling C to claim a reasonable rent for the possession of the property by D up to the time when possession is surrendered (Jones v Merton L.B.C. (2008)), plus damages for any deterioration and the costs of getting possession.
Calculation of damages: the sum which the parties would have agreed by way of a rent/licence fee on a hypothetical basis as a willing seller and buyer at the time of the trespass (must consider the context). C in an action for the recovery of land may join it with a claim for mesne profits if so, it is unnecessary for him to have entered the land before he sues.
NB: Ramzan v Brookwide Ltd (2011) - C was required to choose between alternative heads of loss: the loss of profits from his inability any longer to use an adjoining room as a restaurant OR mesne profits (since he could not both use the room and let it out).
Aggravated damages may be awarded in cases where D's conduct has been high-handed, insulting or oppressive. Exemplary damages may be awarded where the requisite conditions are met.
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