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Elements of Trespass to Land Notes...

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Trespass to Land Week 2+3 NOTE: Pukey’s notes for the rest of trespass to land are still coming Elements of Trespass to Land ‘Direct and intentional or negligent interference with land in the exclusive possession of another without consent or lawful authorization.’ 1. Direct and intentional or negligent interference: Note – If the interference with the P’s property is NOT the DIRECT result of the D’s act, the P would NOT have an action in trespass but possibly (depends on the facts) an action in negligence or nuisance. (P must establish this) For Example  Case Southport Corporation v Esso petroleum Co. Ltd [1954] 2 QB 182.

Facts Oil was jettisoned from a stranded oil tanker and drifted to shore on the tide.

Held Denning LJ held that the inference was not direct but was consequential so that an action in trespass could not be maintained.

Fault required?? For the D to be liable, the interference with the land must be voluntary (Public Transport Commission of NSW v Perry (1977) 137 CLR 107) and intentional or negligent (League Against Cruel Sports Ltd v Scott [1986] QB 240) Public Transport Commission of NSW v Perry (1977) 137 CLR 107 League Against Cruel Sports Ltd v Scott [1986] QB 240

Epileptic passenger had a fit and fell onto the tracks of a railway station.

HC found that the P was not a trespasser as she had gone onto the track involuntarily. Justice Gibbs stated that ‘it has been established for centuries that a D does not commit an actionable trespass by going on to the P’s land involuntarily’. (at 132) D was liable for the trespass of the hounds entering the P land if the master had intended to enter or failed to prevent them from entering through negligence.

Note: The D will only be liable in trespass to land if the trespass was intentional (or reckless) or negligent (or careless). An intention to commit the act that constitutes the trespass NOT an intention to cause harm. To be reckless means to be indifferent to the consequences of your act. 2. Land: Land includes all the bordered land, plants and trees growing on it, buildings, all soils and minerals under the ground and airspace above the ground.

The depth of the ground remaining in a person’s possession includes all areas that the person can control: Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52. Possession of airspace above the ground extends only as far as is considered reasonable for the ordinary use and enjoyment of the land: Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978 QB 479. Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978 QB 479

The def conducted a business where by they would fly over properties, take aerial photos and then offer them for sale to the owner. When Lord Bernstien received an offer to buy aerial photos of his own property, he requested that the photos and all negatives be destroyed. When no reply was forthcoming, he claimed the def had commited a trespass to land, which he argued included the airspace above the ground.

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) NSWLR 490),

D sought the permission of the P to use a part of the adjoining land to erect a scaffold. P refused – want D to pay. D therefore built the scaffold on his own land, which went into the space over the P’s land approx 4.5 meters above the ground. P pursued action in trespass to land. D claimed that there was no trespass as the scaffold did not interfere with the P use of the property.

A landowner does not have possession of airspace above the property to an unlimited height. The rights of an owner to enjoy his/her land must be balanced against the rights of the public to air travel. Accordingly, a person has possession of the airspace above the property to a reasonable ‘height as is necessary for the ordinary use and enjoyment of his/her land and the structures upon it. Bernstein case was considered. Hodgson J held that there was a trespass as the infiltration into the P airspace was ‘of a nature and at a height which may interfere with any ordinary uses which an occupier may see fit to undertake’ (at 495) P was granted mandatory injunction requiring D to remove scaffolding as well as damages.

Scaffolding that protrudes into the airspace over another’s land can constitute trespass (LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) NSWLR 490), as can a protruding sign (Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland) Ltd [1957] 2 QB 334) Firing a bullet over another’s land has been held to amount to trespass to land: Davies v Bennison (1927) 22 Tas LR 52) Soil beneath the ground may also constitute ‘land’: Di Napoli v New Beach Appartments P/L (2004) Aust Tort Reps 81-728 Di Napoli v New Beach Appartments P/L (2004) Aust Tort Reps 81-728 Stoneman v Lyons [1974]

D’s builder fixed rock anchors that projected into the soil under the P’s adjoining land. D argued ‘in a location too distant or the depth too great to be available to the P for the ordinary use and enjoyment of their land.

(NSWSC) Young CJ believed ‘a person has substantial control over and underneath his or her soil for a considerable depth.’

Excavators where held to have trespassed when they built a trench that

when 2 metres below the footings of the P’s garage.

VR 797

3. Exclusive possession: The P need not be the owner of the land but must have exclusive possession of the land at the time of the alleged trespass: Newington v Windeyer (1985) 3 NSWLR 555. (exclusive possession is possession of land with the right to exclude others.) Newington v Windeyer (1985) 3 NSWLR 555

The Ps were all owners of houses that adjoined an open space called The Grove. There were no registered owners of The Grove – the Ps had maintained the space as a common garden and kept out uninvited visitors for nearly 50yrs. When the D, who owned 2 houses that backed onto The Grove tried to access and use the space, the Ps brought an action against the D, claiming trespass to land.

The fact that the Ps were not the registered owners of the land did not prevent them bringing an action in trespass – Their acts of maintaining the garden and treating it as private property were sufficient to establish exclusive possession of the land, entitling them to bring an action in trespass to land.

A tenant in possession of land, rather than the landlord, will have sufficient title to sue and this may even extend to suing the landlord for trespass to land: Gifford v Dent [1926] WN 336. The possession i8tself need not be lawful; provided it is, as between the parties to the action, the better title: Newington v Windeyer; Haddrick v Lloyd [1945] SASR 40. However, a mere licensee (who is a person with permission to be on the land for a particular purpose) does not have exclusive possession and is therefore unable to sue for trespass to land: Vaughan v Shire of Benalla (1891) 17 VLR 129. 4. Without consent of lawful authorization: Without Express or Implied Consent – There is an implied licence (consent) which allows people to enter another’s property to proceed to the door to conduct legitimate business: Halliday v Nevill (1984) 155 CLR 1. Halliday v Nevill (1984) 155 CLR 1.

P, a disqualified driver, was seen by 2 police officers reversing a car form a driveway. P saw police and drove back into the driveway. The police entered the property through the open driveway and arrested P – he however managed to break free and run across the rd to his own house. P claimed the arrest was unlawful, as the police had trespassed on the neighbour’s property

Majority – the police conduct in entering the neighbour’s property did not amount to trespass to land. There is an implied licence to enter an open driveway or path leading to the person’s house for the purpose of legitimate enquiry. Note: when there are locked gates, signs prohibiting entry or other obstructions, there would be no implied licence – entry on the land with

when he was first arrested.

express consent would be trespass.

The implied licence is limited to bona fide entrants with legitimate purpose and does not permit a person to wander around the property at will: Lincoln Hunt Australia Pty Ltd v Willesse (1986) 4 NSWLR 457. Lincoln Hunt Australia Pty Ltd v Willesse (1986) 4 NSWLR 457.

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

Journalist entered P’s investment business with TV crew and dissatisfied customers. The crew filmed the interior of the business and harassed staff and personal on the property. When asked not to screen the footage – D refused. P applied for an injunction to prevent the screen on the basis that the Ds had trespassed on their property to obtain the footage. P had about 70 000 tyres stored on his property. D was a TV crew from A Current Affair – they entered the property through an unlocked gate (generally the gate was locked) with members of the Environmental Protection Agency and the police. P was filmed by the D who attempted to interview him. Sue for trespass to land seeking damages.

While the general public had an implied licence to enter the Ps business for the purpose of seeking bona fide advice or information, there was no implied licences for persons such as robbers or , in this instance, unwanted filming inside the offices and harassing people on the property. P was only entitled to damages for the trespass. Although there may be an implied right to enter, given that the gate was unlocked, the licence did not extend to filming on the P’s premises. Therefore, the extent of the implied licence would include only entrants who were there for the purposes of the tyre business or the racetrack.

Where consent to enter is revoked or the purpose for the entry has come to an end, failure to leave within a reasonable time will constitute trespass to land: Cowell v Rosehill Racecourse Co. Ltd (1937) 56 CLR 605. Cowell v Rosehill Racecourse Co. Ltd (1937) 56 CLR 605

P brought a ticket and enter the D’s racecourse for the purpose of watching the races. D employees asked P to leave (due to his disruptive behaviour) – P refused – he was physically ejected from the grounds. P sued D for battery. D claimed the physical ejection was necessary, as P had become a trespasser on the land.

Once a licensee is given notice that the licence has been revoked, they are allowed a reasonable time to remove themselves and their goods. If they remain on the property beyond a reasonable time they become a trespasser and can be forcibly removed. The P’s refusal to leave amounted to a trespass to land.

When a lawful entrant commits a wrongful act on the land, this may change the lawful entry into a trespass: Singh v Smithenbecker (1923) 23 SR (NSW) 207. This can sometimes be tricky!!! There is some ambiguity as to whether both the trespass in its totality and the wrongful act will constitute a trespass, or whether only the wrongful act will be actionable by the P (as was the issue in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584). Healing

D had entered the P’s premise under a

Barwick CJ and Menzies J held that

(Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR

contractual arrangement enabling them to collect items or property belonging to the Ds – but they removed some of the P’s other goods as well.

the Ds were not liable in trespass tp land as part of their entry was lawful. Kitto J on the other hand found that the D’s conduct did include trespass.

Placing or throwing objects, substances, persons or animals into physical contact with another’s land without consent will constitute trespass: Bathurst City Council v Saban (1985) 2 NSWLR 704. A person has a duty to remove an object from another’s land once consent to place it there comes to an end – any failure to do so within a reasonable time will amount to trespass (which continues until the object is removed): Konskier v B Goodman Ltd (1928) 1 KB 421 Konskier v B Goodman Ltd (1928) 1 KB 421

In renovating a row of houses, the D builders obtained permission to rebuild part of the neighbour’s adjoining chimney. Once done, the builders left a pile of building rubble on the neighbour’s roof. P became a tenant and sued the D when the basement flooded, due to the rubbish on the roof blocking a downpipe.

D was liable for the continuing trespass. D licence to place rubbish on the roof was limited to the time period during which the renovation work was undertaken. Failure to remove the rubbish after they finished work was a continuing trespass. This continued when the new occupiers moved into the property, who then obtained the right to sue in trespass to property.

Lawful Authorisation – Authority to enter land without consent is conferred by a number of statutes to assist officers in the execution of public duties. Eg fire-fighters, police officers, paramedics – are given a right of entry in specified circumstances to protect persons or property, or investigate criminal activity. Authority is also provided to certain employees of electrical companies for the purpose of reading electricity meters. This authority is not unlimited however…. Coco v R (1994) 174 CLR 427

Plenty v

The Act relied upon by the police did Police entered the P premises without not clearly provide a judge with the consent and installed a listening authority to approve entry upon land to device. In a later trial the P claimed that the evidence obtained through the install listening devices. As such, the police action constituted a trespass to listening device was inadmissible on land and the evidence obtained was the basis that the police action constituted trespass. P argued that they inadmissible. had obtained the requisite approval of a Supreme Court judge pursuant to the Invasion of Privacy Act 1971. P’s daughter allegedly committed an Police officers have a right of entry only

Dillon (1991) 171 CLR 635; 98 ALR 353

offence. A magistrate had issued a summons for her to appear before court. D entered the farm to serve the summons – he was sued for trespass as it was argued that the P had withdrawn any express or implied consent for any police constable to enter his farm and serve a summons on his child. Was the D authorised to enter the land without any implied or express licence of the landowner?

in limited circumstances – sanctity of private property. The police entry constituted a trespass as it did not fall into any exceptions. Making an arrest ro to prevent a felony or murder is ok. Cannot enter dwelling merely because he/she suspects something is wrong.

WEEK 3- TRESPASS TO PERSONAL PROPERTY Personal property, as opposed to real property. Includes: %  Choses in action (intangible) %  Choses in possession (tangible). TRESPASS TO GOODS 1. 1. Direct and intentional (or negligent) interference 2. 2. With goods in the possession of another, 3. 3. Without consent. Direct % 

The D need not actually touch the goods: Hutchens v Maughan [1947].

Voluntary % 

Mistake does not make an act involuntary: Beals v Hayward [1960].

Intentional or Negligent % % %

 Act is intentional when D deliberately or wilfully interferes with the P’s goods and it is intentional if the contact or interference is substantially certain to follow from D’s act.  National Coal Board v JE Evans [1951]: cable not labelled on map of excavation site, cable accidentally cut in excavating work. Held: inevitable accident, not intentional or negligent.

Title to sue Actual possession (includes constructive possession). %  Requires an intention to retain control over goods. %  Hamps v Darby [1948]: Racing pigeons shot while flying home. Trespass- P intended to retain control of pigeons. Exceptions to the rule that actual possession is required: % 1. Trustee may sue where goods are in possession of a beneficiary. % 2. A personal representative (executor/ administrator of deceased estate) may sue for trespass to the goods of the deceased. % 3. Owner of a franchise may sue for interference with franchise chattels. % 4. Person with immediate right to possession may sue in trespass to chattels where the direct interference by a 3rd party is to possession of a servant, agent or bailee under a revocable: Penfolds Wines v Elliott (1946). Penfolds Wines v Elliott %  Wine producer sold its wine in bottles with its name on them. Claim was that the bottles were loaned to distributors who were supposed to return the bottles. P sued D for not returning goods (bottles). %  Held per Dixon J: cannot be trespass, as bottles were not in actual possession of Penfolds, thus Penfolds does not have title to sue. Wilson v Lombank

% %

 P bought car from person who was not true owner, left at mechanics. D saw car and returnd to original owner.  Held: P could sue D in trespass even though p was not true owner. P was in possession as had an immediate right to possession.

Finder of Goods A finder of goods who has possession of the goods has title to sue any other except those with a better title. %  Parker v British Airways Board [1982]: passenger found gold bracelet in passengers lounge, handed in to staff for claiming, and on demand of its return was refused. %  Chairman, National Crime Authority v Flack (1998): Police took possession of a briefcase containing $43,000 after lawfully raiding residence. Flack’s son was suspected of involvement with drugs, but no charges were brought about. Held: Flack had prior and superior possession to the money, and thus gave her an enduring right to the find. Actionable per se? %  Merely moving goods without causing damage would be a trespass: Kirk v Gregory (1876). %  A mere taking of a chattel without the infliction of any material damage, the handling of a chattel without authority, unauthorised acts of riding a horse, driving a car, using a bottle, are all equally trespass. Remedies %  %  %

% %

No actual damage- nominal damages Goods actually damaged: A person is entitled to recover the full value of the goods that have been taken or destroyed. % Market value before trespass or the cost of repairing chattel. % If loss in market value is larger than the cost of repairs, the repairs must be provided, as long as it is reasonable to repair the item: Pargiter v Alexander. % ♣ Item can be sold without repair, and then P sue for difference between pre and post damaged good. % ♣ Consequential loss is also recoverable, especially if the chattel was a profit-earning item.  Aggravated and exemplary damages may be awarded for interference with goods: Makryllos v George Laurens (1992).  Self Help: % A chattel can be retaken using reasonable force, short of bodily harm: Qld Criminal Code s274-6.

CONVERSION 1. 1. D deals with goods in a manner that 2. 2. Destroys P’s right to possession of the good. May take form of disposal of goods by way of sale, destruction, change in nature or character of item: Penfolds Wines v Elliott (1946). Title to sue P must have actual possession or immediate right to possession. %  Perpetual Trustees and National Executors of Tasmania v Perkins (1989)

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%

Sisters lent paintings to a brother, who gave them to another brother whose son (on his father’s death) sold the paintings. Sisters sued in coversion % Held: original arrangement was a bailment at will, and thus the sisters had the immediate right to possession. The sale of the paintings constituted a conversion.  Bailee my be able to sue bailor for conversion if bailor wrongfully takes possession during bailment: City Motors v Southern Ariel Super Service.

Finders % 

May be able to sue in conversion against all others but the true owner.

Fault %  D must intend to do the act that interferes with P’s title. %  No element of dish...