AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the definition of land
■ Understand the nature of trespass
■ Understand who can be a party to an action in trespass
■ Understand the available defences
■ Understand the different remedies
■ Critically analyse the tort
■ Apply the law to factual situations and reach conclusions as to liability
Student Mentor Tip
‘Note the differences between trespass to land and to the person and do not mix them up!’
Pelena, University of Surrey
‘Trespassers will be prosecuted’ is a phrase which appears on notices throughout England. Most people do not realise that it is rarely possible to prosecute. Originally trespass to land was a crime as well as a civil offence. This is generally no longer the case, the only remedy being available through the civil courts. Trespass to land is one of the oldest torts originating from the old action for trespass (see Chapter 1).
English common law has always gone to great lengths to protect interests in land. In the early days, a landowner was entitled to place mantraps or other devices on his land and would not be liable for any injury caused. This is no longer the case. People are entitled to say who can come on to their land and to take steps to keep unwanted visitors (trespassers) out, but the steps must be not be likely to cause injury. As has been seen, in Chapter 7, in certain circumstances landowners can be liable for injuries caused to unlawful visitors resulting from a danger on the land (Occupiers’ Liability Act 1984).
The tort retains some original characteristics. It is actionable per se, so that no actual damage need be caused. It is enough that the trespasser has crossed the boundary intentionally for liability to arise. Trespass will occur when even a small part of the trespasser’s anatomy has crossed the boundary. Thus in Franklin v Jeffries, The Times, 11 March 1985 there was a trespass when an unwanted arm came through an open window. Obviously the level of compensation where no actual damage has occurred will in most cases be limited. It will be seen, however, that it is not unusual for the remedy of choice to be an injunction, preventing a repeat of the tort.
The interference with the owner’s rights must be direct and intentional. Indirect interference may give rise to a cause of action in nuisance (see Chapter 9). The issue of intention can cause some problems. The action itself must be deliberate but there is no requirement that there should be any intention to trespass. A drunkard who staggers up the path to what he mistakenly believes to be his own front door intentionally trespasses on the neighbour’s land. They intended to go along that path although they did not intend to trespass. In Conway v George Wimpey & Co Ltd  2 KB 266 it was held that it was irrelevant that the person was unaware that they were trespassing or even honestly believed that the land was theirs. Conversely, a parachutist who gets blown on to land by the wind does not commit trespass as the entry was not intended. In Smith v Stone  Style 65 a person who was pushed on to land by someone else was not liable for trespass.
It is sometimes argued that the tort protects a right of privacy. As will be seen, this is unlikely to happen in most cases. Photographs taken with a long lens may infringe privacy and be actionable as breach of confidentiality or nuisance, but without the crossing of the boundary there is no trespass.
A simple definition is: a direct physical and unlawful interference with land which is in the possession of another person.
Trespass to land can occur in a number of ways, the most common being by way of entry on to land. It can also occur by remaining on land having been asked to leave and after a reasonable time has been allowed for that purpose.
Robson v Hallett  2 All ER 407
A police officer was invited into a house to pursue enquiries. The consent to him being there was withdrawn and he tried to leave. Before he could do so he was assaulted. The issue was whether or not at the time of the assault he was a lawful or unlawful visitor.
Once permission is withdrawn a reasonable time must be allowed for the visitor to leave and Lord Diplock stated:
‘provided he did so with reasonable expedition, he would not be a trespasser while he was doing so’.
Placing an object on or against land will also amount to trespass. This can extend to the placing of a human being on land. In Smith v Stone it was held:
‘that it is the trespasse of the party that carryed the defendant upon the land, and not the trespasses of the defendant: as he that drives my cattel into another man’s land is the trespassor against him, and not I who am the owner of the cattel’.
More usually cases are concerned with objects. An example of the more usual case is found in Westripp v Baldock  2 All ER 799 when it was held that a ladder leaning against the claimant’s wall was a trespass.
The word ‘land’ sounds simple – we all know what it means but for legal purposes it can mean vastly more than the soil itself. The term includes the surface of the soil, any buildings erected on it, the airspace above it and the subsoil beneath it. In theory therefore ‘land’ includes airspace out to infinity and the subsoil through to Australia! Clearly in the modern world this is nonsense. Limits have to be drawn.
In Bernstein v Skyviews and General Ltd  2 All ER 902 Mr Justice Griffiths said that he could 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’. As the Judge observed, this would mean that every time an aircraft or a satellite passed over the land a trespass would be committed. In trying to balance the rights of the landowner with those of the general public to take advantage of modern technology, the Judge concluded:
‘The balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space … to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the air space than any other member of the public.’
Bernstein v Skyviews and General Ltd  2 All ER 902
The defendants’ business was taking aerial photographs of premises which were then sold to the owners of the premises. They took pictures of the claimant’s house. He claimed that the defendants were liable for trespass. Mr Justice Griffiths found that the defendants had flown over the land without permission but, in the light of the reasoning set out above, held that there had been no trespass.
Bernstein is in reality more concerned with the issue of privacy. The position of commercial airlines has been dealt with by the Civil Aviation Act 1982 which provides:
‘s76(1) No action shall lie in respect of trespass … by reason of the flight of an aircraft over any property at a height … which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight.’
S76(2) identifies that ‘damages in respect of the loss or damage shall be recoverable without proof of negligence or intention’ – so this is strict liability.
An owner’s rights in relation to the subsoil are restricted in various ways but the fact that ownership vests in him has been used to advantage in the context of problems arising from the use of the highway (see section 8.5.2).
So far, the person whose rights have allegedly been infringed has been referred to as the owner of the land. This implies that ownership is necessary to maintain an action for trespass. This is not in fact the case. As a general rule, the person in possession of land has the right to sue, thus proving that there is some truth in the saying that ‘possession is nine-tenths of the law’. Rejecting the proposition that legal title is necessary before an action can be brought, Lord Kenyon CJ in Graham v Peat  1 East 244 said ‘Any possession is a legal possession against a wrongdoer’. As a consequence, even a squatter has enforceable rights against anyone who enters that land other than a person with a better legal title.
In contrast an action attempted against a party with superior rights of occupation is bound to fail.
Delaney v T P Smith & Co  KB 393
The claimant and the defendant had reached an oral agreement under which the claimant would acquire a tenancy of the defendant’s property. However, the claimant then secretly entered the property before the lease was actually executed. When the defendant then ejected the claimant he sued in trespass but failed. The agreement on the lease had not been put in writing as required, as a result of which the defendant still had superior rights of occupation and was entitled to eject the claimant.
It would also of course be possible for a tenant to bring an action in trespass against the freehold owner of the property because a leaseholder has rights of exclusive possession. However, it would not be possible for a lodger to sue in trespass against a landlord because a lodger only has a licence.
White v Bayley  142 ER 438
The claimant was paid £75 a year for managing and living in premises rented by his employers. When the defendants gave the claimant notice to quit and took possession the claimant forcibly re-entered. The defendants sought an injunction. The claimant then brought a counter claim in trespass but failed. As the court identified he was entitled to ‘the use but not the occupation of the premises’.
The general and obvious rule is that the person who commits a trespass will be liable for it. This simple statement is modified in some ways.
A person with a better legal title is able to enter land and eject the trespasser from it without being liable in their turn for trespass. It should be noted that where there is an issue of residential occupancy, even a better legal title will not protect the person from liability under the Protection from Eviction Act 1977 which requires that a court order for possession be obtained prior to any eviction.
It will be seen that certain defences will protect someone who clearly enters land without authority to do so in order to deal with an emergency (see section 8.6.3).
The various ways in which a trespass may occur have already been discussed but it is useful to consider the principles which have emerged from case law in order to ‘put flesh on the bones’ of the basic rules.
It has already been seen that claimants are only entitled to limited protection against infringement of the airspace above their land (Bernstein v Skyways and General Ltd). Protection will be given by the courts against something which occurs at a lower level and has a more immediate impact than an over-flying aircraft. In Kelson v Imperial Tobacco Co  2 QB 334 it was held that an advertising sign which overhung the claimant’s land amounted to a trespass.
The construction industry is particularly vulnerable in this regard as the use of very tall cranes is common. Such cranes have wide booms which are likely to travel through another’s airspace. In Woolerton & Wilson v Richard Costain Ltd  1 WLR 411 the defendants’ crane swung over the claimant’s land. The defendants were liable for trespass. More recently, in Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd  38 BLR 82 the matter was further considered.
Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd  38 BLR 82
A site was being developed which involved the use of very tall cranes. When the cranes were not being used they were left so that the booms were free to swing with the wind to avoid them being blown over. As they swung, the cranes travelled over adjoining property.
The over-swinging cranes amounted to a trespass. Drawing a distinction with over-flying aircraft Mr Justice Scott rejected the concept of the balancing of rights propounded in Bernstein