TRESPASS
The
only person who can sue for trespass is the owner of the land.
Mistake is not a defence to an action for trespass. Trespass occurs
when:
- a person enters
on land in possession of the plaintiff
- that person
remains on the land after initial trespass or after permission to
remain has been withdrawn.
- a person
places, or throws material object on the land
- leaving the
material object on the land without lawful justification.
The
measure of damages is the diminution in value of the property caused
by the trespass - see ejectment. Trespass to land consists
of:
- Entering upon
land in possession of the plaintiff - Robson v Hallett [1967] 2
QB 393 and Amstad v Brisbane City Co [1968] Qd R 334. A
landlord breaches the rule of quiet enjoyment and is a
trespasser even though he/she owns the land if he/she enters upon
his/her tenant’s premises without the tenant’s permission.
- Remaining upon
such land after initial trespass or after permission to remain express
or implied, has been withdrawn - Cowell v Rosehill Racecourse
(1937) 56 CLR 605. For example, a spectator at a private sporting event
can be asked to leave by the organisers at any time and without reason
even though he/she has paid money to attend. If the spectator refuses
to leave then he/she becomes a trespasser.
- Placing or
throwing any material object upon it. Therefore, it is trespass to dump
rubbish on another’s land.
- Thereafter
leaving the material object upon the land and in each case without
lawful justification. It is a continuing trespass to remain on land or
leave objects there - Konskier v Goodman [1925] 1 KB 421. It
is continuing trespass if after dumping rubbish on somebody else’s land
the trespasser refuses to remove the rubbish.
See:
tort
encroachment
of buildings
TRESPASS
TO LAND
Trespass
to land consists of:
- Entering upon
land in possession of the plaintiff - Robson v Hallett [1967] 2 QB 393 and Amstad v Brisbane City Co [1968] Qd R 334.
- Remaining
upon such land after initial trespass or after permission to remain
express or implied, has been withdrawn - Cowell v Rosehill
Racecourse (1937) 56 CLR 605.
- Placing
or throwing any material object upon it
- Thereafter
leaving the material object upon the land and in each case without
lawful justification. It is a continuing trespass to remain on land or
leave objects there - Konskier v Goodman [1925] 1 KB 421.
ENCROACHMENT
OF BUILDINGS: The Court has the power to grant relief to an adjacent
or encroaching owner in respect of the encroachment of buildings.
This is governed by the states’ and territories’ Encroachment of
Buildings Acts.
TRESPASS
MUST BE A DIRECT INTERFERENCE WITH THE PLAINTIFF'S LAND:
EXAMPLE
Cases
of damage caused indirectly such as by the growth of a neighbour's
trees, comes under the tort of nuisance
- Smith
v Giddy [1904]
2 KB 448. However, the law is unclear concerning encroaching trees.
BELOW
THE SURFACE OF THE LAND: The occupier is normally in possession of
what is under or attached to the land and so has a title to sue for
trespass even though he may not know of the existence of the object
interfered with - Corp
of London v Applevard
[1963] 2 All ER 834.
AIRSPACE
ABOVE THE LAND: It is a trespass to fix an object in the air space
above land - Kelsen
v Imperial Tobacco Co
[1957] 2 Q8 334. An object passing through the air space above land
and touching an object on the land renders the person responsible
guilty of trespass to the land - Oavies
v Bennison
(1927) 22 Tas LR 52. The rights of an owner of land in the air space
above the land is that necessary for the ordinary use and enjoyment
of the land and the structures on it. Interference outside this area
will not constitute a trespass - Lord
Bernstein v Skyviews
[1977/ 2] All ER 902.
THE
MEASURE OF DAMAGES TRESPASS TO LAND: The measure of damages is
the diminution in the value of property caused by the trespass. The
plaintiff may claim a reasonable remuneration for any use of his land
by the defendant. Where chattels are severed from the land by an act
of willful wrongdoing, the plaintiff may recover either the value of
the chattel at the moment of severance or the diminution in the value
of the land, at his/her discretion. For other cases he/she is only
entitled to the diminution in the value of the land or the cost of
restoration provided that it is not disproportionate to the value of
the land - Evan
v Balog
[1976] 1 NSWLR 36
OTHER
REMEDIES
INJUNCTION:
The court orders the cessation of the trespass. This may be a remedy
additional to damages.
CRIMINAL:
Applies in certain cases.
EJECTMENT:
Were a person is deprived of possession of his land by the act of
another in wrongfully taking possession (trespass) or in holding over
after the expiration of a lawful possession such at the expiration of
a lease (not trespass) he/she may recover possession by an action
of ejectment.
RE ENTRY:
The dispossessed person should re enter peacefully. If he/she
enters forcibly but peacefully, the party against whom the force is
directed cannot bring an action in respect of the entry or of
injuries caused to him/her by the use of that force. However he/she
can recover for injuries caused by the use or excessive force -
Hemmings
v Stoke Poges Golf Club
[1920] 1 K8 720. Although forcible entry by a person entitled in law
to possession cannot result in a civil cause of action, a criminal
offence under the relevant Crimes Act may be possible.
DAMAGE
BY AIRCRAFT: The Civil Aviation (Damage by Aircraft) Act 1958 provides
that the provisions of the Rome Convention of 1952 on damage
by foreign aircraft to third parties on the surface applies in
Australia (s8(1)). The Act drastically curtails common law rights in
receiving and the amount of the award. See also Damage by Aircraft
Act 1952.
TRESPASS
TO LAND MUST BE A DIRECT ACT, NOT CONSEQUENTIAL
This
principle is illustrated by Southport
v Esso Petroleum
[1954] 2 All ER 561:
Denning
LJ: "This is one of those cases, rare nowadays, where much
depends on ascertaining the proper cause of action, particularly in
regard to the burden of proof. The Southport Corporation alleges
that the deposit of oil on their foreshore was either a trespass to
land, or a nuisance, or that it was due to negligence. The judge
seems to have thought that it did not matter much what was the proper
cause of action; it all came back in the end to the universal tort of
negligence. The action was, he said, "to be treated in the same
way as any running down or collision case in which the plaintiff
alleges negligence.
I
do not share this view, and will give my reasons:
(1)
Trespass to land. In order to support an action for trespass to the
land the act done by the defendant must be a physical act done by him
directly on to the plaintiff's land. That was decided in the
year 1498 in the Prior
of Southwark's Case
(1498) Y8 13 Hen 7 which is conveniently set out in Fifoot's
History and Sources of the Common Law at 87. The Prior complained
because the defendant, who was a glover, had made a lime pit for
calf skins so close to a stream as to pollute it. It was held
that if the glover had dug the lime pit in the prior's soil the
action ought to be in
trespass;
but if it was made in the glover's soil it should be in case. The
same distinction was taken in Reynolds
v Clarks (1726)
1 Str 634, where the defendant put a rainspout on his house from
which water poured on to the walls of the plaintiff's house and
rotted them. The plaintiff brought an action for trespass,
but failed because he should have brought an action upon the case.
The reason was because the prejudice to the plaintiff was not
immediate, but consequential. Quite recently, in Read
v Lyons [1947]
AC 156,166; 62 TLR 646; [1946] 2 All ER 471 Viscount Simon, LC
affirmed the same distinction when he observed that "the circumstances
in Fletcher
v Rylands (1866)
LR 1 Ex 265 did not constitute a case of trespass because the
damage was consequential, not direct".
Applying
this distinction, I am clearly of opinion that the Southport
Corporation cannot here sue in trespass. This discharge of oil was not
done directly on to their foreshore, but outside in the
estuary. It was carried by the tide on to their land, but that was
only consequential, not direct. Trespass, therefore does not
lie...."
TRESPASS
AB INITIO: Under this doctrine a defendant who enters upon land with
authority but abuses his privilege by some positive act of wrongdoing
against the plaintiff, is regarded as a trespasser not merely upon
committing the act but from the moment of original entry - Windeyer
v Riddell (1847).
The rule has been criticised in Chic
Fashions v Jones [1968]
2 Q8 299) but may not be obsolete.
TRESPASS
THROUGH THE AIR SPACE:
AIRCRAFT:
There
is no direct Australian authority on the problem of aircraft.
The Civil Aviation (Damage by Aircraft) Act 1958 for example, allows
for trespass.
THE
TRESPASS MUST BE A DIRECT ACT, NOT CONSEQUENTIAL
This
rule is illustrated in Gregory
v Piper
(1829)109 ER 220 where the defendant directed his servant S to pile
rubbish in such a way as to obstruct the entry to the stable yard of
the plaintiff's inn. The rubbish did not at first touch the wall of
plaintiff's yard, but "being of a loose kind, as it became dry
it naturally shingled down towards and ran against the wall".
Plaintiff brought his suit in trespass. Because trespassory injury
must be "direct", the law was that a master could only be
liable for his servant's trespass if he had expressly ordered the act
complained of or it was the inevitable consequence of his order.
TRESPASS
BY AN OVERHANGING ADVERTISING SIGN
Signs
that encroach on the neighbour’s property have been a fruitful
cause of litigation. The legal principle is illustrated in Kelson
v Imperial Tobacco Co
[1957] 2 QB 334:
McNair
J; "The report of Gifford's
Case reads(ibid): "If he" that is, the judge
"was right in the conclusion to which he had come that the
plaintiffs were tenants of the forecourt and were accordingly tenants
of the space above the forecourt usque
ad coelum,
it seemed to him that the projection was clearly a trespass upon the
property of the plaintiffs. That decision, I think, has been
recognized by the textbook writers, and in particular by the late
Professor Winfield, as stating the true law. It is not without
significance that the legislature in the Air Navigation Act, 1920,
s9, found it necessary expressly to negative the action of trespass
or nuisance arising from the mere fact of an aeroplane passing
through the air above the land. It seems to me clearly to indicate
that the legislature at least were not taking the same view of the
matter as Lord Ellenborough in Pickerina
v Rudd
(4 Camp 219) but rather taking the view accepted in the later cases,
such as the Wandsworth
District Case (13
QBD 904), subsequently followed by Romer J. in
Gifford v Dent
[1926] WN 336. Accordingly, I reach the conclusion that a trespass
and not a mere nuisance was created by the invasion of the
plaintiff's air space by this sign".