Trespass to land - Notes PDF

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TORTS LLB152- Trespass to land A trespass to land occurs when a defendant directly and intentionally (or possibly negligently) interferes with land in the exclusive possession of the plaintiff without the plaintiff’s consent or other legal justification: Plenty v Dillion (1991) 171 CLR 635, 639.

 Elements: A. B. C. D. E.

The subject matter interfered with is land; There was a sufficient act of interference; The interference to the P was direct upon the D’s act and was not consequential; The P has title to sue the defendant; and The D had the requisite state of mind.

A. Subject matter is land The Ds act of interference must be to land. Factors that will amount to land:  Basely v Clarkson (1681) 3 Lev 37; 83 ER 565: things growing on land, like grass.  SSYBA Ltd v Lyons [2013] WASC 445: fixtures on land, like a wall  Stoneman v Lyons (1975) 133 CLR 550: soil and earth to any depth, but note the common law presumption.  Kelson v Imperial Tobacco Co ( of great Britain and Ireland) Ltd [1957] 2 QB 334:airspace There is legislation regulating entry into other types of land. E.g.  Damage by aircraft act 1999 (Cth)  Civil aviation safety regulations 1998 (Cth)  Right in water and irrigation act 1914 (WA): regarding waterways through land

B. Sufficient Act of interference There must be an act of interference which is sufficient to amount to a trespass to land. Plenty v Dillion (1991) 171 CLR 635 Acts that amount to trespass to land :  Entry onto land: Halliday v Nevill (1984) 155 CLR 1: police entering land via standing on a driveway Hill v Higgens [2012] NSWSC 270: entering land to remove debris on land

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Causing things to come into contact with land: Westripp v Baldock [1938] 2 All ER 779: leaning a ladder on a wall SSYBA Pty Ltd v Lane [2013] WASC 445: attaching brackets to a wall Bade v Rural city of Murray Bridge (2008) 101 SASR 302: building on another’s land

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Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605 and Chen v New South Wales [2014] NSWCA 41: remaining on land when consent is revoked after a reasonable amount of time to leave has expired.

Special category: AIRSPACE : traditionally the principle of ‘cajus est solum ejus est usque ad coelom et ad enferos ( to whom belongs the soil, his it is, even to heaven, and to the middle of the earth)’ applied to trespass to land. Factors that differentiate trespass and factors that amount to trespass:

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Nature – transient or permanent interference

Kelson v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 Bernstein v Skyviews & general Ltd [1978] 1 QB 479 Compare to LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 compare to Davies v Bennison [1927] Tas LR 52  Height- of the interference Bernstein v skyviews & General Ltd [1978] 1 QB 479 Compare to Graham v KD Morris & sons Pty Ltd [1974] Qd R 1 Compare to LJP investments Pty Ltd v Howard Chia investments Pty Ltd (1989) 24 NSWLR 490  Effect- apprehension caused by the interference Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 Davies v Bennison (1927) 22 Tas LR 52

Bernstein v Skyviews & General Ltd [1978] 1 QB 479 (QB)  Ds business was to fly over country mansions, photograph them & then attempt to sell the photographs to the owners of the mansions.  Lord Bernsteins house was photographed by the D and D attempted to sell him the photographs.  Lord Bernstein sued the D for trespass to land. Conclusion- ‘balance of rights of an owner to enjoy the use of his land against the right of the general public to take advantage of all that science now offers in the use of air space’ (488) ‘this balance is in my judgment best struck in our present society 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 had no greater rights in the air space than any other member of the public’ (488)

LJP investments Pty Ltd v Howard Chia investments Pty Ltd (1989) 24 NSWLR 490 (NSW SC) D was carrying out a commercial development on its property Without the permission of its neighbor (the P), the D erected scaffolding that protruded into the P’s airspace.  The scaffolding was 4.5 meters from the Ps ground and protruded 1.5 meters into the Ps airspace.  The P sued for trespass to land. Conclusion – ‘I think the relevant test is not whether the incursion actually interferes with the occupiers actual use of the land at the time, but rather whether it is of a nature and height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake.’ (495)

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TORTS LLB152- Trespass to land Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 (Qld SC)  D was building on land adjoining P’s land. The D was using a crane which was affixed to their land.  In describing the movement of the jib of the crane the court said at 2 ‘when the crane is not in operation the jib is left free to rotate and so it takes up the line of least resistance to the prevailing wind. Because the base of the tower of the crane is situated about fifty feet from the boundary between the [defendants] land and that of the plaintiff the jib, when the wind is in the north or north-east, encroaches to the extent of 62 feet [19 meters] over the plaintiff’s land and is suspended above the roof of her house; this frequently happens.’  P sued D in trespass to land seeking an injunction preventing the jib of the crane from entering her airspace.  Conclusion- ‘I am persuaded that the over-hanging crane which, as the plaintiff says and I accept, is both unsightly feature of her land and a cause of nervousness and apprehension to her, interferes with that part of the airspace above her land which is requisite for the proper use and enjoyment of the land.’ (4)

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Davies v Bennison ? (1927) 22 Tas LR 52 (Tas SC) While on his own property the D fired a bullet from a gun. Bullet hit and killed cat sitting on the garage of P’s land. This event was witnessed by the P, the land owner and owner of the cat. The P sued for trespass. Conclusion- ‘it seems an absurdity to say that if I fire at another’s animal on his land, hit it, kill it, and so leave the bullet in it, I have committed no trespass, and yet, if I miss the animal and let the bullet fall into the ground, have committed trespass… [s]o far as the ability to use land, and the air above it, exists,… any intrusion above land is direct and physical breach of the negative duty not to interfere with the owners use of his land, and is in principle of trespass.’ (56-7)

C. Direct Act As with all forms of trespass, but unlike negligence, the act of interference must be direct and not consequential: Southport coroperation v Esso Petroleum Co Ltd [1954] 2 QB 182 Mann v Saulinier (1959) 19 DLR (2d) 130, 132 it was said that to throw stones onto another’s land would be a direct interference, but it would be a consequential interference to allow stones from a rundown building to fall onto the plaintiff’s land. Gregory v Piper (1829) 9 B&C 591; 109 ER 220  The D ordered his servant to pile large quantities of earth, stone, bricks and rubbish on his land but near the border of the P’s land.  The D gave the servant strict instructions not to let the pile touch the P’s wall and gates.  About a week after the pile was created it dried and blew and rolled onto the P’s wall.

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Conclusion-the court help the rubbish coming into contact with the wall was a ‘natural consequence of the act ordered to be done... the [defendant is answerable in trespass.’ (593) ‘[the rubbish] appeared to be of the loose kind, and it was therefore probable that some of it naturally might run against the wall. [the defendants servant] said that some of it of course would go against the wall. Now the defendant must be taken to have contemplated all the probable consequences of the act which he had ordered to be done, and one of these probable consequences was, that the rubbish would touch the plaintiffs wall. … the defendant, therefore, was the person who caused the act he is responsible as a trespasser.’ (594-4)

Southport coroperation v Esso Petroleum Co Ltd [1954] 2 QB 182 (CA)  Ds tanker became stranded in the ribble estuary and so discharged about 400 tonnes of oil to float.  The oil became deposited on a foreshore and ‘Marine Lake’ owned by the Ps  Clean up costs were substantial and Ps sued Ds in trespass, nuisance and negligence.  Conclusion- Interestingly, the court does not outline how close the stranded tanker was to the P’s foreshore, except to say it was ‘in proximity both to the sea and to the channel of the Ribble’ (208) and that the discharge occurred between Salters Buoy and Wall End Buoy at 15:25. Singleton LJ: did not consider trespass in detail but said even if there were a trespass in detail but said even if there were a trespass the defence of necessity would be made out. Denning LJ: ‘applying this distinction, I am clearly of opinion that the plaintiffs cannot here sue in trespass. This discharge of oil was not done directly on to their foreshore, but outside in the estuary. It was carried by the tide on to their land, but that was only consequential, not direct. Trespass, therefore, does not lie.’ Morris LJ: essentially came to the same conclusion as Denning LJ but said in obiter: ‘if the ship, while sailing in placid seas near Southport, had for no good reason deliberately decided to pump out a quantity of oil on to the sea and had done so in circumstances in which, by the action of the tide or the wind, the oil would be carried on to the Southport shore, I consider that there would have been a good cause of action in trespass… there may be trespass if something is placed on land. But equally I think that there may be trespass if something is thrown on land or if the force of the wind or of moving water is employed to cause a thing to go on to land.’ In summary, consider when discussing directness: 1. What is the act; that is, what has the D done? 2. What is the interference; that is, what has happened to the P? 3. How closely related are these two things; that is, how immediately after the act does the consequence follow? The closer or more probable it is that interference will occur, then the more likely the interference is direct.

D. Title to Sue

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For the P to have title to sue for an interference with the land, O need only have a better right to possession of the land than D: Newington v Windeyer (1985) 3 NSWLR 555,563 Just because P is the owner of the land will not necessarily give them title to sue; they must still have the best right to possession. It is not a defence to claim someone other than the P has better title to the land: Glenwood Lumber Co v Phillips [1904] AC 405, 410 Types of possession giving rise to title to sue: 1) Exclusive Possession Occurs when a person has control of land to the exclusion of all others This is the best type of possession, so will always give a P title to sue. We will consider exclusive possession: a) Gained through a contractual right (common) b) Gained through a wrong (uncommon) A) Exclusive possession gained through a contractual right consider the following scenarios:  Can a tenant bring an action against a third party for interference with the leased land? Kelson v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334  Can a tenant bring an action against the landlord if the landlord interferes with the leased land? Rodrigues v Ufton (1894) 20 VLR 539  Can a landlord bring an action against a third part for interference with land that the tenant is in possession of? Rodrigues v Ufton (1894) 20 VLR 539  Can a landlord bring an action against a tenant who is in possession of land under a lease that is not legally effective? Delaney v TP Smith Ltd [1946] KB 393 B) Exclusive possession gained through a wrong: Newington v Windeyer (1985) 3 NSWLR 555 (NSW CA)  Dispute was over an area of land called ‘The Grove’  The Ps were the owners of the houses faced onto an open space of land 60m by 18m (200ft by 60ft) called ‘the grove’. (the Ps lived at 153 Queen Street and Nos 1, 2, 3 and 4 The grove)  The D was the owner of a house that backed onto the grove. (the D, Miss Jean Newington, owner Nos 3 and 5 Waimea avenue).  The grove was not owned by the Ps or the D and none of the parties derived any rights to possession from the true owner  However, the Ps treated the grove as their own. They employed people to maintain the trees, gardens, rockeries and grass; they used the grove as a common ground between their houses; they had hosted birthday parties and wedding receptions; they had paid rates over the grove since 1978

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The Ps objected when the D took down the fence separating her house from the Grove and began to access the grove. The Ps sued the D for trespass to land. Conclusion- ‘the [plaintiffs] are not the owners of the registered title of the Grove, but the fact does not prevent them maintaining an action of trespass against the [defendant]’ (563) ‘the evidence proved that the owners of Nos 1-4 The grove [the plaintiffs] had engaged in many acts of ownership over a period of nearly fifty years. They employed a man to mow the lawn. They engaged in the maintenance of the trees, garden and rockeries. They cut down trees when necessary. They used the grove as a common garden. Individual resident held birthday parties and wedding receptions in the grove, used it for displays of sculpture, for exhibitions, and, on a number of occasions, for the entertainment of dental congresses. Since 1978 the occupiers of the houses in the grove have been assessed for and paid rates in the respect of the land. They blocked off attempts by [the owner] and the [the defendant] to use the grove. On many occasions the occupiers told the uninvited visitors that the grove was private land and that they were trespassing. In my opinion, his honor [the trial judge] was correct in finding that the [the plaintiffs] were in possession of the grove.’

2) License  a licensee is a person with permission to enter and remain on land (generally for a certain purpose or amount of time), but with no right to exclusive possession of the land.  E.g. University students, the P in Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605  Traditionally, a licensee does not have title to sue for trespass to land: Western Australia v Ward (2002) 213 CLR 1 affirming Radaich v Smith (1959)101 CLR 209.  English case law has moved away from tbis approach: Manchester airport plc v Dutton [2000] 1 QB 133

E. Requisite state of mind  

The Ds interference must have been their fault This requires the Ds conduct to have been: 1) Voluntary and intentional; or 2) Voluntary and Negligent 1. Voluntary and intentional  a voluntary act is concerned with the Ds conscious mind; if D does not consciously commit the act then it will not be voluntary  to meet the intentional state of mind requirement: the D’s act must be deliberate and willful

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it does not matter that D did not intend the harm suffered to the P. That is, the D’s motive need not have been malicious; the D need not have intended to cause harm to P. Generally, if the D’s act is not voluntary it will not be intentional and, similarly, if the act is voluntary it will be intentional; but not always.

2. Voluntary and Negligent  Trespass evolved as a intentional tort, and so traditionally intent was always required. However, from about the 1950s in Australia (not England) the idea of voluntary and negligent trespass has developed.  high court affirmed the existence of negligent battery (trespass to the person) which is persuasive for trespass to land cases: Williams v Milotin (1957) 97 CLR 465  lower court authorities suggesting trespass to land can be through a negligent act: Bade v Rural city Murray bridge [2008] SASC 9; (2008) 100 SASR 31;...