Trespass to Land

Trespass to land

Definition: Trespass to land occurs where a person directly enters upon another’s land without permission, or remains upon the land or places or projects any object upon the land. (There is no need to prove damage).
The ways in which trespass can occur:
1. Entering upon land.
E.g. walking onto land without permission or refusing to leave when permission has been withdrawn or throwing objects on land.
Basely v Clarkson (1681)
D owned land adjoining C’s and whilst mowing his own lawn he involuntarily and by mistake mowed down some grass on the C’s land. C was successful in claiming against trespass.

This case is also an example of mistaken entry.

2. Trespass to the airspace.
E.g. there can be trespass to airspace if the D is within a reasonable height.

Kelsen V Imperial Tobacco Co. (1957)
D committed trespass by allowing an advertising board to project 8 inches into C’s property at ground level and another above ground level.

3. Trespass to the ground beneath the surface.
Bulli coal mining Co. V Osborne (1899)
The D’s mined form their land through the C’s land.

Involuntary entry
An involuntary trespass is not actionable. E.g. Smith V Stone (1647)
D was carried onto C’s land by force and violence of others. There was trespass by the people who carried D onto the land but not by the defendant.

Negligent entry
A negligent entry is possible and was considered in League against cruel sports V Scott (1985).
A keeper of foxhounds (D) was liable for allowing the hounds to trespass onto the land owned by another person (C) during a hunt.

Rights of entry
* A private right of way granted to the D
* Public right of way
* A right given by a common law
* A right of access given by a statute

Continuing trespass
A continuing trespass is a failure to remove an object (or the defendant) unlawfully placed on the land. It will lead to a new cause of action each day as long as it lasts.
Holmes v Wilson (1839)
The D’s trespassed onto the C’s land to erect buttresses to support a sinking road. The C was able to sue again when the defendants failed to remove the buttresses.

Possession of land
This tort developed to protect a person’s possession of land and so only a person who has exclusive possession of land may sue.

Thus, a landlord of leased premises does not have exclusive possession, nor does a lodger or licensee. However a tenant or subtenant does.
Street V Mountford (1985)