Trespass To Land Notes

TRESPASS TO LAND INTENTIONAL TORTS | 43 TRESPASS TO LAND Involves the direct and intentional or negligent interference with land in the exclusive possession of another without consent or other lawful authorisation - Plenty v Dillon Elements: 1. Was the action of the defendant direct and intentional or negligent? 2. Does the defendant enter into or remain on the land? Did the defendant cause an object or another person to intrude onto land? 3. Was the land in possession of another? 4. Did the plaintiff consent to the interference with the land? 5. Defences 6. Remedies Hill v Higgins * Applicants alleged respondent neighbours committed acts of trespass in circumstances where deteriorating retaining wall leaned and encroached on applicant's land * Claimed bricks from retaining wall fell on applicants land * Claimed wall leaned onto applicants land constituting encroachment Johnson v Buchanan * Under legislation it was an offence by a dog owner for a dog to bite another person * HELD: There was a defence: trespass to land * The D's neighbour had his arm over the fence, and the D's dog bit the neighbour's arm Plenty v Dillon * 2 police went to Mr Plenty's farm in order to serve a summons/notice. However, under the law the summons had to be served by the post. * HELD: the police officers were trespassing because they entered the farm without any consent (either express or implied) or lawful justification o Definition of trespass; the importance of consent or lawful justification 44 | INTENTIONAL TORTS WAS THE ACTION OF THE DEFENDANT DIRECT AND INTENTIONAL OR NEGLIGENT? * * * The contact (interference) with the Pl's property must be a direct (not consequential) result of the D's actions/conduct It is the act that must be intended, not the actual interference This might occur in a number of ways: o No authority at all o The erection of a building o Entry for a purpose, other than that specified/permitted o Remaining after permission/licence has been revoked o Propulsion of an object, substance or 3rd person Southport Corporation v Esso Petroleum Co Ltd * Oil tanker released 400 tonnes of oil, in an estuary, to re--float the vessel. The oil ended up on the P's shore. * HELD: Denning LJ said this was not a direct act sufficient to constitute a trespass to land. He said the discharge was not done directly on to the P's foreshore but outside in an estuary and the tide took it to the P's land. The fact that the tide took the oil to the P's land was only consequential, and not direct. * * * For an action in trespass the actions of the D must be voluntary as well as intentional or negligent o Public Transport Commissioner of NSW v Perry SS? no action in trespass where an epileptic fit caused a person to fall (unconsciously) onto the P's land. o Smith v Stone SS? no trespass if carried onto the P's land by the force and violence of other people. The D will only be liable in trespass to land if the trespass was intentional (or reckless) or negligent (or careless). o an intention to commit the act that constitutes the trespass, not an intention to cause the harm. o to be reckless means to be indifferent to the consequences of your act. League Against Cruel Sports v Scott o Only liable for the trespass of the hounds entering the P's land if the master had intended the hounds to enter or failed to prevent them from entering through negligence. INTENTIONAL TORTS | 45 Nickells v Melbourne Corporation * The defendant's servant drove a wide horse--drawn cart up a narrow lane which was flanked by glass shop windows. * The size of the cart was such that, in order to turn at the end of the lane, the cart had to be brought to within 15 inches of one of the windows. * While turning, the horse became startled and backed the cart through the window. * HELD: There was sufficient evidence to support a finding that the driving of the horse and cart in the lane in such circumstances constituted negligence on the part of the driver. o The D may be liable in trespass to land if the trespass was intentional (or reckless) or negligent (or careless). An involuntary trespass may be actionable if the def is negligent or reckless 46 | INTENTIONAL TORTS

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