Trespass to land

The intentional or negligent, unlawful entry upon or direct interference with land belonging to another.

Trespass is as old as common law itself. It was needed in order that claimants could bring their own action where the distinction between civil and criminal law was not clear.

There are torts of trespass to the person and trespass to goods but is more accurately used in conjunction with land.

The tort of trespass to land is generally used to refer to an interference and can be actioned without having to prove damage, actionable per se.

If there is any loss then damages are payable by the trespasser.

Different types of trespass to land are as follows;

Requires direct entry onto land without permission Perera v. Vandiyar (1953) but it need not be the defendant who enters the land Smith v Stone 1647.

It could be active interference and may be by mistake as in Basely v Clarkson (1681). The defendant owned land adjoining  the plaintiff, and in mowing his own land he involuntarily and by mistake mowed down some grass on the land of belonging to the plaintiff. The plaintiff had judgment for 2 shillings.

It could also be static interference as in Kelsen v. Imperial Tobacco Co.(1957), where a sign erected on a building that overhung the plaintiff's property committed the tort of trespass, even though no harm or nuisance was caused by it. An injunction was granted to the landowner and the sign was removed.

It may only be temporary as in the case of Woollerton and Wilson Ltd v. Richard Costain Ltd (1970). The defendants were building contractors and the crane they were using overhung the claimant’s land approximately 50 ft above ground level. The defendant admitted trespass to the claimant’s airspace, and offered compensation to the claimant. The claimant would not accept the compensation, and asked for an interim injunction preventing the trespass. Stamp J said: ‘In principle there ought to be an injunction, but on the particular facts of this case, not until the defendants had a chance of finishing the job.’

It could also be simply the merest of contact as in Westripp v Baldock (1939), when leaning a ladder against the plaintiff’s wall constituted a trespass.

Explain how the courts have developed the rules on the duty owed by an occupier to trespassers to his land under the occupiers liability act 1984.


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