Torts A Extended Land Torts Notes

Trespass to Land

• Definition: Intentionally or negligently entering or remaining on, or directly causing any physical matter to come into contract with, land in the possession of another is a trespass.

• This tort protects the interests of plaintiffs in maintaining their land free from physical intrusion

  • It is not the function of the tort to protect ownership as such

  • Nonetheless, because the owner is often in possession, the purpose of many a suit is the settlement of disputed rights over land, which may be backed by the sanction of an injunction. Trespass is actionable per se

• Provides a useful remedy for the violation of a person’s privacy where that violation takes the form of unlawful intrusion on that person’s land or premises

  • In recent years Australian courts have demonstrates a willingness to grant injunctions to restrain the televising of film and sound recordings obtained in the course of the trespass

What is land?

• Old Maxim ‘cuius est solum eius est usque ad coelum et ad inferos’

• whoever has the earth also has the heavens above it and depths below it (or the rights in the soil extend to heavens and to hell)

• Surface:

  • including things attached to it (eg buildings on land, fences and trees) and growing on the surface

• Below surface

  • You practically own it. (common law stance)

• Above surface (ie airspace) – but how high?

  • Test = whether physical intrusion into airspace interferes with ordinary user LJP

• To walk on the surface of the plaintiff’s land is enough to constitute the tort

• Anything attached to the soil, and capable of being separately possessed, may be the subject matter for trespass quare clausum fregit including damage to grass.

• Possession of land may be separated horizontally.

  • In Australia, public roads have not been regarded as the property of the co-terminous owners of the land, being originally vested in the Crown and generally handed over to municipal corporations

  • One result of this has been that the courts have widely construed to powers of highway authorities, regarding the fee simple of the land in which public streets are laid out as vested in the authority, and not merely the fee simple of the surface.

• Members of the public enjoy a right of way over the highway but if a person uses a highway for purposes other than those ‘reasonably incident to its user’ as a highway to use is a trespass. The purpose need not be unlawful

  • It may be trespass to tunnel beneath the surface of land, to mine there, in the absence of specific provision to the contrary, the owner of the land has the right to exercise control over the ground underneath to a considerable depth.

Davies v Bennison

• D shot a bullet across the land and it killed P’s cat

• Bullet is going over the land so it’s a trespass to land but it’s only transient

• However, it was held to be a trespass for the time it travelled across the airspace.

Bernstein v Skyviews & General Ltd

• D took an aerial photo of P’s house from a plane

• No trespass to land as it was an incursion at a height were there was no interference with the ordinary user of the land

• We have to balance the rights of the owner with the rights of the public

• The balance is best struck if we restrict the height to that of ordinary usage. Was 700 feet in the air

• Taking the photo didn’t turn it into a trespass, the tort does not protect privacy as such

• Simply taking the photo was not enough to lose their protection from the act

• Court suggested that perhaps constant surveillance from the air could be trespass

Kelson v Imperial Tobacco

• D had a big billboard which was 8 inches over P’s property

• It’s a permanent intrusion: an appropriate remedy would be a mandatory injunction

• Was a trespass

WRONGS ACT 1958 (VIC)

• s 30: No action for trespass or nuisance only because an aircraft flies over property at ‘a height above the ground which having regard to the wind, the weather and all the circumstances is reasonable, or the ordinary incidents of such flight’

  • so long as Air Navigation Regulations are complied with

• s 31: Where material damage or loss is caused to any person on land or water by … an aircraft whilst in flight taking off or landing then, damages … shall be recoverable from the owner of the aircraft without proof of negligence

  • Don’t have to show fault. Strict liability. If something falls out of the sky, they must compensate you for it

LJP Investments Pty Ltd v General Ltd

• D was a property developer

• They had to go on neighbours land to build the house

• The scaffolding didn’t start til 4 metres up

• There were two posts sunk into the land and it came 1.5 metres up

• P asked for payment, P disagreed

• D built it anyway

• D argued scaffolding was not interfering with P’s use of the land

• Court held it was a trespass and endorsed the last case.

• Relevant test is not whether the incursion actually did interfere

• It is that it may interfere with the ordinary user of land

Elements

1. Standing to sue

2. Interference must be direct result of defendant’s act

   1. (eg Southport Corpn v Esso Petroleum)

   2. Argument about degree, look at the facts of the case. If it’s not direct, you could sue in nuisance

3. Actionable per se

   1. (eg Dumont v Miller)

4. Defendant’s act must be positive & voluntary

   1. (eg Public Transport Commn of NSW v Perry)

5. Fault

   1. Defendant must have intended to do, or been negligent in doing, the act that is the trespass to land

   2. (eg League Against Cruel Sports v Scott – although query burden of proof).

6. Was there consent?

7. Defences

8. Remedies

Standing to sue

• P must have a legal estate and exclusive possession of the land at the time of the interference

  • Exclusive possession:

• Tenants who acquire exclusive possession under lease can bring action for trespass to land against third parties

• Someone with interest in land (ie easement or profit a prendre)

• Landlord can bring action on the case for damages for ‘damage to the reversion

  • If you show the land’s been damaged they can sue for damage to their reversionary interest

• Only a...

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