#6908 - Torts A Extended Land Torts - Torts Law

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 tenant and not a landlord can sue if a third party trespasses on the land

• The tenant in possession may also sue the landlord for trespassing on the land

• McIntosh v Lovel Kirby held that where the tenant is a one-person company, that company being the alter ego of its managing director, the latter has sufficient possession to sustain a suit in trespass

  • A lodged may be able to sue in trespass if, on the facts, he or she had exclusive occupation – relevant fact includes whether they had possession of an outdoor key and the right to bar access to the rooms. Someone like a hotel guest would not have sufficient interest to sue.

• Some authority for the proposition that where a married couple live together but where only one of them is the legal occupier only that individual will have standing to sue in trespass.

• Whether a plaintiff has exclusive possession is a question of fact and one especially difficult to decide where contractual arrangements for presence upon land are interfered with.

• It is no defence to a wrongdoer that the possession of the plaintiff in respect to another third party is unlawful, the fact of possession is enough to establish P’s title and the wrongdoer cannot plead jus tertii unless it is also to assert that the interference with possession was committed with the authority of that third party.

• The person with the legal title is assumed to be the trespassor.

• If you’ve just got a licence, an interference with that licence where you’ve suffered actual damage may be sue-able in torts, you might be able to sue in action on the case

Vaughan v Shire of Benalla

• P had a licence to use the land and P had a licence to graze sheep

• D was dumping sewage

• P sued D and won even though he didn’t actually have possession of the land

• There was a trespass of D against crown and there was actual damage to P.

• P owed block which faced land and D did to

• P employed someone to mow it and maintain it

• They paid rates on land and blocked anyone

• Told everyone it was their land

• Court decided it was in their exclusive possession

• It was still trespass

Interference must be direct result of defendant’s act

• The act must be direct. The immediate act must constitute the trespass complained of; it is not trespass if the invasion of the plaintiff’s land is merely consequential upon the act of the defendant

  • The P who complains that the defendant has erected a spout to drain away water from the eaves of the house of the defendant which then drips on their land, can only sue in case, not trespass

• To cause some foreign matter to enter or to come into physical contact with the land of the P is a trespass

• Examples

  • Firing a gun into the soil

  • Placing a ladder against or driving nails into the wall of P’s building

  • Encouraging a dog to run onto P’s land

  • Removing the doors or windows

  • Throwing a person onto another’s land

  • Operating a bulldozer so as to cause earth to fall onto and damage P’s property

Southport Corpn v Esso petroleum

• Lord Denning – oil discharged by defendant and carried by tide to plaintiff’s foreshore was consequential and not direct enough for trespass

• Cf Morris LJ – if defendant deliberately employs force of wind or moving water ‘to cause a thing to go on to land’ the act would be sufficiently direct to constitute trespass

• There was no trespass because it was indirect as wind and tide broke the chain of causation

• However minority said if someone used the wind or tide purposefully to trespass, it could be direct enough

Forms of interference

• The intrusion onto the plaintiff’s land must result from some act or omission by the...