Trespass Notes PDF

Preview

Summary

TRESPASS NOTESOrder of Cases:  Entick v Carrington  Davies v Bennison  Bernstein of Leigh (Baron) v Skyviews & General Ltd  Gregory v Piper  Esso Petroleum v Southport Corporation  League Against Cruel Sports  Mayfair v Pears  Robson v HallettEntick v Carrington (1765)Trespass is act...

Description

TRESPASS NOTES Order of Cases:  Entick v Carrington  Davies v Bennison  Bernstein of Leigh (Baron) v Skyviews & General Ltd  Gregory v Piper  Esso Petroleum v Southport Corporation  League Against Cruel Sports  Mayfair v Pears  Robson v Hallet

Entick v Carrington (1765) Trespass is actionable per se and guaranteed for all - even officials cannot break the law without authorisation. "If it is law, it will be found in our books. If it is not to be found there, it is not law." FACTS  In this case, state officials had searched the plaintiff's home and taken personal belongings  This was an action of trespass for breaking and entering the plaintiff's house and seizing his papers  The defendant's, who were King's Messengers, pleaded that they had a warrant from the Secretary of State that ordered them to search for the plaintiff and bring him, together with his books and papers, to safe custody  The jury found a special verdict and assessed the damages (if any) at 300 pounds DEFENDANT'S ARGUMENT  That such warrants have issues frequently since the Revolution [of 1688] o They had a warrant issued by Lord Halifax, the secretary of state, who in NZ may be for instance the PM, or Minister of Police  They say too, that they have been executed without resistance upon many printers, booksellers, and authors, who have quietly submitted to the authority; that no action hath hitherto been brought to try the right; and…no court of justice has ever declared them illegal o Courts said this was only relevant if there was a mandate which validated this warrant. There was no lawful basis for it. RULING  The warrant to seize and carry away the party's papers in the case of a seditious libel, is illegal and void  Proclaimed that the state is subject to the law on the land  Upheld the right of all individuals to be free from unreasonable search and seizure by the state  This case had a big influence on the NZ legal system as it stated that everyone, including the Crown, was subject to the rule of law. This remains central to NZ’s legal system today. The case also stated that citizens have a right against unreasonable search and seizure by the state. This is enshrined in NZ’s Bill of Rights Act 1990 (s21) in today’s NZ legal system. Entick was also incorporated into NZ’s common law through the English Laws Act 1858. Thus a 1765 case continues to impact upon NZ JUDGES REASONING (Lord Camden CJ)  Lord Camden, Chief Justice of the Court of Common Pleas, ruled the search was illegal as it was not based on any legislation or common law precedent



   



For the defendants, under a necessity to maintain the legality of the warrants, under which they have acted, and to shew that the Secretary of State, in the instance now before us, had a jurisdiction to seize the defendant's papers. If he had no such jurisdiction, the law is clear, that the officers are as much responsible for the trespass as their superior This power, so claimed by the Secretary of State, is not supported by one single citation from any law book extant. It is claimed by no other magistrate in the Kingdom but himself The right to secure your property is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole By the laws of England, every invasion of private property, be it ever so minute, is a trespass o No man can set foot upon my ground without my licence, but he is liable to and action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil The justification is submitted to the judges, who are to look into the books; and see if such justification can be maintained by the text of the statute law, or by the principles of common law. o If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgement

Actionable per se:  actionable per se: Actions that do not require the allegation or proof of additional facts to constitute a cause of action nor any allegation or proof that damages were suffered.  Actionable per se means legally sufficient to support a lawsuit in itself. In such actions, the plaintiff does not have to prove that he suffered any damages in order to have a cause of action.  Trespass is actionable per se. o Do not need damage  Nuisance is not actionable per se. o You do need harm of some kind ARGUMENTS Plaintiff:  Was the entry unlawful?  No, but the fact that there still was an entry (a central feature of trespass) is important  [Damage] o Damage is not a requirement of trespass, it is actionable per se o However, the fact that there is damage, may be relevant to remedies, in particular whether you might get damages in a case o Not interested in damages, just interested in working out whether one party has lawfully entered on the other persons property  Privacy o Interference with his privacy  Consent  Abuse of power  Right to property, in the sense of land rights o Trespass is meant to protect your land rights  Could this be a situation where Defendant:  Will argue they had a warrant o However there was no legislation which justified this warrant

 

This has been going on for a long time: o There was no valid law for this! Not a good argument Public interest at stake/law and order o Surely a trespass of this kind is justified on the basis of law and order, catching criminals o Entick was a stirrer, against the state, wanting to topple the government

Davies v Bennison (116) IMPORTANT POINTS  Need not actually enter the land yourself, so long as the Def directly causes some object to contact with the property.  Cujus est solum ejus est usque ad coelum. No doubt in this case that the owner's rights over the sky extended to a height sufficient to cover this case, although bullet did not touch the ground itself. FACTS  The relevant facts in this case are that the defendant, while in his own yard, fired a bullet from a small-bore rifle at, and killed, the plaintiff's cat, which was upon the roof of a shed in her yard RELIEF SOUGHT  The plaintiff claimed to be entitled to damages: 1. For illness caused by fright and shock, resulting from the firing of the bullet close to her 2. For the value of the cat and for illness resulting from the fright and shock of seeing it killed before her eyes 3. For trespass by firing the bullet into her land DEFENDANT'S ARGUMENT  The defendant paid 2 pounds into Court, as covering the value of the cat, but contended that he had committed no trespass to plaintiff's land and that the damage from the shock, etc, was too remote to be recoverable, even if proved ISSUES  The case was left by the judge to the jury, to say: 1. Whether the amount paid in was sufficient as damages for killing of the cat 2. Whether they found that plaintiff's illness was the result of the firing of the bullet, and, if it was, then to assess damages subject to a reserved non-suit point. 3. To assess damages for the trespass to land RULING  The jury found for the defendant on all issues, evidently not realising that they had been directed to assess damages for the trespass to the land. JUDGE'S REASONING  So far as the ability to use land and the air above it exists, mechanically speaking to my mind, any intrusion above land is a direct physical breach of the negative duty not to interfere with the owners use of his land and is in principle a trespass. Cujus est solum ejus est usque ad coelum: what is owned on the ground is owned in the heavens.  There seemed little doubt that the illness of the plaintiff was caused by anger and agitation (at seeing her cat killed in her own yard) increasing an already disturbed condition of health, consisting of neurasthenia and long-standing gastric trouble



Shock caused by seeing an injury occur to another human being is in law considered too remote from the original wrongful act of the defendant causing the injury to be a ground for damages, and it seems to me to be quite clear that a pet animal, however cherished, cannot be regarded as nearer and dearer than a child or other loved relative o I do not think that there are grounds for a new trial on this issue (issue 2)  Trespass:  If it was trespass, then it was committed in circumstances and in a manner which aggravated it.  It is curious that the law as to trespass by missiles which do not touch the ground never has been authoritatively laid down in England  Trespass is actionable without pecuniary damage being proves, so that if this is a trespass it could be the subject of substantial damages if a jury were to take a serious view of the circumstances of aggravation  Trespass is a breach of the negative duty not to interfere directly and illegally with ownership o Ownership, whether permanent or temporary, is a right in rem, a right to use, deal with, and enjoy the thing owned to an indefinite and almost unlimited extent  A man who walks from his roof on to that of his neighbour is clearly guilty of trespass. The neighbours house is part of his freehold o But when the intrusion consists of sending something such as a balloon, a bird, a kite, or a missile over another's land without touching it or anything built or growing upon it, important fundamental and subtle questions arise  Lord Ellenborough in Pickering v Rudd: "I do not think it is a trespass to interfere with the column of air super incumbent on the close. I once had occasion to rule upon the circuit, that a man who, from the outside of a field, discharged a un into it, so as that the shot must have struc the soil, was guilty of breaking and entering it. A very learned judge, who went the circuit with me, at first doubted the decision, but I believe he afterwards approved of it, and that it met with the general concurrence of those to whom it was mentioned. But I am by no means prepared to say, that firing across a field in vacuo, no part of the contents touching it, amounts to a clausum fregit. If this board overhanging the plaintiff's garden be a fregit, at the suit of the occupier of every field over which his balloon passes in the length of time for which the super incumbent air is invaded" o Of this dictum, Blackburn said in Kenyon v Hart:  "I understand the good sense of that doubt, though not the legal reason of it…" o It seems an absurdity to say that if I fire at another's animal on his land, hit, kill it, and so let the bullet fall into the ground, have committed a trespass. Such distinctions have no place in the science of the Common Law o So far as the ability to use land, and the air above it, exists, mechanically speaking, to my mind any intrusion above land is a direct physical breach of the negative duty not to interfere with the owner's use of his land, and is in principle a trespass  At any rate, I can see no doubt whatever that an owners rights extend to a height sufficient to cover the facts of this case. In my opinion the direction was right and damages for the trespass should have been and must be assessed What does Davies v Bennison do in relation for the interference element?  Need not actually enter the land yourself, so long as the Def directly causes some object to contact with the property.

Bernstein of Leigh (Baron) v Skyviews & General Ltd IMPORTANT POINTS  The case established that the rights of a land owner over his land extend only to a height necessary for the ordinary use and enjoyment of his land.  Rights to airspace restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it, having no greater rights above that height than any other member of the public. FACTS  The defendant company took aerial photographs of property in order to offer them for sale to the property owners  Lord Bernstein's property was photographed on 3 August 1974  When he received a letter inviting him to buy the photograph, he took serious offence and said so in a letter  The staff member who dealt with the matter answered Lord Bernstein's letter by offering to sell him the negative.  Lord Bernstein sued the company for trespass to land, citing the defendant's actions as an invasion of his privacy o Griffiths J found that it was highly likely that at some stage the defendant's aircraft had flown over the boundary of Lord Bernstein's property, and so had passed above his land, albeit several hundred feet up PLAINTIFF'S ARGUMENT  The plaintiff claimed that as owner of the land, he is also owner of the air space above the land, or at least has the right to exclude any entry into the air space above his land  He relied on the old Latin maxim, cujus est solum ejus est usque ad coelum et ad inferos (Who ever owns the soil, it is theirs all the way up to the Heaven and down to hell) o The claim failed. If the latin maxim were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden. RULING  There was no trespass. A landowner only has rights in the airspace to such a height as is necessary for ordinary use and enjoyment of the land, not extreme heights above your property. Even if there was an action for trespass, this would not provide a remedy in relation to the photos as there was no law against taking a photograph. The taking of a photograph could not turn an act which was not trespass into trespass. JUDGE'S REASONING (Griffiths J)  The Latin phrase relied on by the plaintiff has been used by English judges in many cases, but they have all been concerned with structures attached to the adjoining land, such as overhanging buildings, signs or telegraph wires, and for their solution it has not been necessary for the judge to cast his eyes towards the heavens; he has been concerned with the rights of the owner in the air space immediately adjacent to the surface of the land  That an owner has certain rights in the air space above his land is well established by authority o HE has the right to lop the branches of trees that may overhang his boundary, although this seems to be founded in nuisance rather than trespass: o Wandsworth Board of Works v United Telephone Co Ltd (1884)  The Court of Appeal did not doubt that the owner of land would have the right to cut a wire placed over his land  Fry LJ said: "As at present advised, I entertain no doubt that an ordinary proprietor of land can cut and remove a wire placed at any height above his freehold"











Fry LJ added that the point was not necessary for his decision, and it would be subject to any statutory rights given to the post office and other undertakers to erect telegraph lines or other installations o In Gifford v Dent:  Romer J held that it was a trespass to erect a sign that projected 4 ft 8 inches over the plaintiff's forecourt  "The plaintiffs were tenants of the forecourt and were accordingly tenants of the space above the forecourt usque ad coelum, it seemed to him that the projection was clearly a trespass upon the property of the plaintiffs o That decision was followed by McNair J in Kelsen v Imperial Tobacco Co Ltd  In this case, the judge granted a mandatory injunction ordering the defendants to remove a sign which projected only 8 inches over the plaintiff's property.  The plaintiff in the current case relied strongly on this.  I very much doubt that McNair J was intending to hold that the plaintiff's rights in the air space continued to an unlimited height or 'ad coelum' as Mr Gray submits  The point that that the Judge was considering was whether the sign was a trespass or a nuisance at the very low level at which it projected Adjoining owners have no right to erect structures overhanging or passing over their neighbours' land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty Wholly different considerations arise when considering the passage of aircraft at a height which in no way affects the user of the land o In Saunders v Smith  Shadwell VC said "Thus upon the maxim of law, cujus est solum ejus est usque ad coelum, an injunction might be granted for cutting timber and severing crops; but, suppose a person should apply to restrain an aerial wrong, as by sailing over a person's freehold in a balloon, this surely would be too contemptible to be taken notice of I can find no support in authority for the view that a landowner's rights in the air space above his property extend to an unlimited height o In Wandsworth Board of Works v United Telephone Co Ltd  Bowen LJ described the maxim, usque ad coelum as a fanciful phrase, to which I would add that if applied literally it is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space o This balance is best struck by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height, he has no greater rights in the air space than any other member of the public

Gregory v Piper Important Point  If in the intentional execution of an act where a trespass is not intended the necessary and natural consequence of the act is a trespass, one will be liable in trespass. Facts  Gregory owned a public house called the Rising Sun with a stable-yard in the back which could be accessed by a back gate through Old King’s Yard.  Piper owned the property surrounding Old King’s Yard and disputed Gregory's right to pass through the yard to his stable.  Piper employed a labourer to lay down a quantity of rubbish, consisting of bricks, mortar, stones, and dirt, near Greogry’s stable-yard, in order to obstruct the way.  Part of this rubbish rolled against Gregory’s wall and gates  The labourer was called as a witness, and stated that he was employed by the defednat to not let any of the rubbish touch the plaintiff's wall; but because the rubbish was loose, as it became dry it naturally shingled down towards and ran against the wal.  The plaintiff said he was determined not to remove it  G raised an action of trespass against G. Issue  The question is whether the trespass was the act of the master  Issue in question was whether a master could be liable for the trespass which occurred as a result of instructions the master gave to another in his employment.  P claimed he could not be held liable because he had instructed S not to let the rubbish touch the wall, and the fact that the rubbish resulted in a trespass of G’s property was due to negligence on S’s part.  Question of control, question of natural and probable consequence? Held  A master is liable in trespass for any act done by his servant in the course of executing his orders with ordinary care. P was therefore liable for trespass as it was a probable and foreseeable result of the S‟s act which P had instructed S to do. The trespass was a necessary or natural consequence of the act ordered to be done by P, therefore making P as the employer liable. Judge's Reasoning (bayley J)  The master desired the servant to lay down the rubbish so as not to let it touch or lean against the wall of the plaintiff  But, if in execution of the order it was the necessary or natural consequence of the act ordered to be done that the rubbish should go against the wall, the master is answerable in trespass  The evidence shews that that was the natural consequence. Boomerang scenario  In contrast to Gregory, this was an instantaneous.  Gregory v Piper looks fairly indirect, yet it WAS trespass.  Can you have an indirect trespass?

Esso Petroleum v Southport Corporation Facts   

Defendant's ship became stuck in estuary, 400t oil dumped to re-floa...