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:

The measure of damages is the diminution in value of the property caused by the trespass - see ejectment. Trespass to land consists of:

encroachment of buildings


Trespass to land consists of:

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.



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


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.


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.


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.


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.


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".