TRESPASS TO LAND

Trespass. Trespass to land is a tort comprising physically entering or remaining on land in the possession of the claimant or placing an object on or projecting over the land in the possession of the claimant. Obviously, in each case, the act must be carried out without the licence or consent of the claimant.

What is trespass? Trespass is a tort to land (note that trespass is not confined to freehold and real property, but also extends to exclusive rights, e.g. over reserved burial plots (Reed v. Madon [1989] Ch. 408, with regard to the Cemeteries Clauses Act 1847) and includes the ground sub-soil and air-space above, and each of the sub-divisions of the same, (See the useful summary on this point in Clerk & Lindsell on Torts, 20th Edn (London: Sweet & Maxwell, 2010), paras. 17-30 to 17-31) consists of: (1) entering land in the possession of the claimant; or (2) remaining on such land; or (3) placing or projecting any object on or over land, but in each case without lawful justification. Unlike nuisance or negligence, a trespass is actionable even without damage being suffered. (It is a matter of interest whether the old rule that even trespass which is minor or de minimis in nature is actionable (see Yelloly v Morley (1910) 27 T.L.R. 20) will survive CPR Pt 3 r. 3.4 aimed, inter alia, at discouraging actions which are an abuse of process, if not instituted for a justifiable purpose such as the resolution of a boundary dispute.) Trespass actions are also used to settle disputes about title to land , or if a defendant interferes with a claimant’s airspace that amounted to trespass save that that conduct would not constitute trespass if the interference were at such great height that it did not interfere with the claimant’s airspace – Laiqat v Majid [2005] All E.R. (D) 231 (Jun). Contrast the position generally as regards depth of land in Bocardo SA v. Star Energy UK Offshore Ltd [2010] UKSC 35.

Justification may be by operation of law or statute (for example, by the Access to Neighbouring Land Act 1992, granting qualified rights, subject to meeting certain conditions, to enter on a neighbour’s land to carry out repairs to one’s own land; and the Party Wall etc Act 1996 s.8 with regard to repairs to party walls). It is a defence that any encroachment was “wholly inadvertent and involuntary” (Braithwaite v South Durham Steel Co Ltd [1958] 1 W.L.R. 986) or that entry was necessary to preserve life or property (see Cope v Sharp [1910] 1 K.B. 168), but in such cases the defendant must prove that the necessity arose without any negligence on his part and likewise with performance of the acts in respect of the entry (see Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R 1242).

The act must be a physical interference with the claimant's land but can be committed by placing an object upon or even up against the claimant’s land (Gregory v Piper (1829) 9 B. & C. 591) or, for instance, by placing a sign or crane which projects over the claimant’s land (Kelsen v Imperial Tobacco [1957] 2 Q.B. 334; Anchor Brewhouse Developments v Berkeley House (Docklands Developments) Ltd [1987] 2 E.G.L.R. 173.

Furthermore, an act which was formerly lawful can become a trespass if a right to enter land was for a particular time period or if a licence to remain on land is revoked. In such circumstances, the formerly lawful occupier of premises will become a trespasser.

Equally, a person who has licence to enter lands for a particular purpose will be a trespasser if he enters the land for another purpose.

In order to maintain a claim for trespass, the claimant must normally have an immediate right to occupy the land (Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; Fowley Marine (Emsworth) Ltd v Gafford [1968] 2 Q.B. 618). Hence, where the land is let, it is the tenant and not the landlord who possesses the right to bring a claim in trespass. The landlord in that situation does not have an immediate right to possession of the land. The landlord may have a right to damages if he can show that as a result of physical damage to the property, the value of his reversionary interest has been diminished. A licensee or lodger who has no exclusive possession of the land has no right to bring a claim in trespass.

Actual possession of the land is presumptive proof of ownership and is sufficient against a trespasser who cannot show any better title or authority (Browne v Dawson (1841) 12 Ad. & E. 624; Delaney v T.P. Smith Ltd [1946] K.B. 397).

The continuation of a trespass constitutes a fresh right of action (Drake v Bedfordshire CC [1944] K.B. 620) notwithstanding that damages may already have been recovered for the original trespass (Bowyer v Cook (1847) C.B. 236).

Where the trespass is an encroachment, such as an extension which is built partly on the claimant’s land, damages in lieu of an injunction may be appropriate. A line of cases including Jaggard v Sawyer [1995] 1 W.L.R. 269, A.G. v Blake [2001] 1 A.C. 268; Amec Developments Ltd v Jury Hotel Management (UK) Ltd [2001] 1 E.G.L.R. 81; and WWF World Wide Fund for Nature v World Wrestling Federation Inc [2006] EWHC 184 have established that the measure of damages in such circumstances is conventionally analysed in terms of the loss of bargaining opportunity or the price payable for the compulsory acquisition of a right or interest in land.

Aggravated damages may be claimed where the trespass is accompanied by high-handed, insulting or oppressive conduct. Such conduct must have occurred when the trespass is committed. Aggravated damages are not appropriate where the high-handed conduct occurs in the course of litigation: Horford v Bird [2006] UKPC 3; [2006] 1 E.G.L.R 75. Damages can be awarded on the hypothetical negotiation approach even where the trespassing party has obtained no advantage: Field Common Ltd v Elmbridge Borough Council [2009] 1 P. & C.R. 1. The hypothetical negotiation approach was followed in Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; [2010] 3 W.L.R. 654 but awarded damages of only £1,000 on the principle derived from a compulsory purchase case, Pointe Gourde Quarrying & Transport Co v Sub-Intendent of Crown Lands [1947] A.C. 565.

It is a defence to a claim in trespass that the acts complained of are authorised, either by means of a lease or licence granted by the owner of the land, by means of an easement or by virtue of a statutory power authorising the person to enter the land.

What makes an act a trespass? If a defendant has placed something against the claimant’s wall (Gregory v. Piper (1829) 9 B. & C. 591), or a sign projecting over the claimant’s shop (Kelsen v Imperial Tobacco Co [1957] 2 Q.B. 334) this may be a trespass; or if a defendant shoots into or over the claimant’s land (Picketing v Rudd (1815) 1 Stark. 56); or “oversails” it with a crane (Anchor Brewhouse Developments Ltd v. Berkley House (Docklands Developments) Ltd (1987) 284 E.G. 625; Franklin Mint Ltd v. Baxtergate Investment Co Unreported March 12, 1998 CA.

The claimant must plead an act of physical interference with his land, but there will be sufficient interference of this if, for example, matter is deliberately placed so that natural forces will carry it to the claimant’s land, for example by jettisoning oil at sea (Southport Corp v Esso Petroleum Ltd [1956] A.C. 218 (but not according to Lords Radcliffe and Tucker, at 242 and 244 respectively)); see, too, Home Brewery Co Ltd v. Davis (William) & Co (Leicester) Ltd [1987] Q.B. 339, where it was said that the result would have been the same whether the claimant had claimed in nuisance or trespass.

A continuing state of affairs, which was originally lawful as being permitted for a reasonable time but which has become unlawful by expiry of that time, is a trespass (Konskier v. Goodman [1928] 1 K.B. 421). So, also, where an express licence is revoked or lawfully terminated, the former licensee becomes a trespasser if he refused to vacate (cf. Wilde v Waters (1855) 24 L.J.C.P. 193; and Thompson v Park [1944] K.B. 408).

There may also be a trespass if the defendant has a right to enter the land for a particular purpose, but in fact enters it for a different purpose (Wilcox v Kettel [1937] 1 All E.R. 223) or abuses that authority. In the latter case, the trespasser is a trespasser ab initio (see Six Carpenters’ Case (1610) 8 Rep. 146a; but see also Chic Fashions (West Wales) Ltd v. Jones [1968] 2 Q.B. 299 for criticisms of the former case as anachronistic, but not overruling it, and Cinnamond v British Airports Authority [1980] 1 W.L.R. 582, applying it). As a result, although a member of the public has a right to use the highway for the purpose of passing and re-passing (and for activities incidental to doing this) he does not have the right to use the highway for any other purpose, for example picketing premises, unless protected by legislation (Hubbard v Pitt [1976] Q.B. 142; but see DPP v Jones [1999] 2 W.L.R. 625, where it was held that peaceful and non-obstructive assembles were not “trespassory assemblies” within the Public Order Act 1986).

Continuing trespass. Each occasion when an act of trespass is committed or continued amounts to a new trespass, and can be sued on as a new cause of action (Holmes v Wilson (1839) 10 Ad. & E. 503; Drake v Bedfordshire CC [1944] K.B. 620) even if damages have been recovered for the original wrong (Bowyer v Cook (1847) C.B. 236 and see Wheeler v Keeble (1914) Ltd [1920] 1 Ch. 57). Where there is a continuing trespass a claimant may be held to have acquiesced in the trespass so as to be estopped in complaining of the trespass. However, estoppel or acquiescence will only apply where the claimant has encouraged or allowed the defendant to believe something to the defendant’s detriment (Jones v Stones [1999] 1 W.L.R. 1739, applying the dicta of Oliver J. in Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 W.L.R. 1265 at 1283-1285).

What must be affected for there to be a trespass? What must be affected is, generally real and corporeal property. (But see para. 49-01, fn. 105). The claimant does not need to have exclusive possession of the property in question for all purposes (Cox v Glue (1848) 5 C.B. 533; Wellaway v Courtier [1917] 1 K.B. 200). It is sufficient if he has an exclusive right, for example of cutting turf (Wilson v Mackreth (1766) 3 Burr. 1824) or some other benefit of the land to take (called in the past a “profit á pendre”) such as shooting or fishing rights (Fitzgerald v Firbank [1897] 2 Ch 96, and see Mason v Clarke [1955] A.C. 778). However, other incorporeal hereditaments, such as a right of way, or a right of water cannot be the subject-matter of a trespass (Bryan v Whistler (1828) 8 B. & C. 288 at 292). The proper cause of action for interference with an easement is in nuisance.

Who can sue in trespass? To be entitled to sue for trespass, the claimant must usually be in possession of the land or have a present right to possession of the land (see Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35; and also Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; Fowley Marine (Emsworth) Ltd v. Gafford [1968] 2 Q.B. 618). Where land is held under a tenancy, it is the tenant rather than the landlord who is the proper person to sue for trespass (Aftersoil v Stevens (1808) 1 Taunt. 183). However, if the trespass has caused physical harm to the property such that the damage is likely to affect the landlord’s reversionary interest (that is, the interest of the landlord in the property on termination of the tenancy), the landlord can sue for damage to his reversionary interest (Mayfair Property Co v Johnston [1894] 1 Ch. 508). On the other hand someone who is a licensee or lodger, who has no exclusive possession, cannot sue for trespass (Allan v Liverpool Overseers (1874) L.R. 9 Q.B. 180 at 181, 192). Possession of land by a claimant extends to everything on or below it which may be regarded as part of the land, for example including a safe built into a wall (City of London Corp v Appleyard [1963] 1 W.L.R. 982), as well as the airspace above it (see Woollerton and Wilson Ltd v. Richard Costain Ltd [1970] 1 W.L.R. 411; and Franklin Mint Ltd v Baxtergate Investment Co (Transcript, March 12, 1988, CA)).

However, if the claimant has only actual possession as owner this gives rise to a presumptive proof of property, and is sufficient to allow the claimant to take neither admitted nor denied action against a defendant who commits an act of trespass (also referred to in these circumstances in relation to the claimant as a “mere wrongdoer”) provided the defendant cannot show any better title or authority (Browne v Dawson (1841) 12 Ad. & EI. 624; Delaney v TP Smith Ltd [1946] K.B. 393). If a claimant has only a possessory right the defendant cannot defeat the claimant’s claim by setting up what is called a “jus tertii” (that is, to claim that there is someone with a better title to sue in trespass than the claimant) unless the defendant can show that he acted under the authority of that “better” right.

A claimant who is the owner of the soil may maintain an action for trespass against a defendant (who is himself entitled to rights over the land) for acts of trespass which are not justified by the exercise of those rights (Earl of Lonsdale v Rigg (1857) 1 H. & N. 924). As a result, ownership of land that is subject to use as a highway if only as to the surface, will usually be vested in the highway authority (Hickman v Maisey [1900] 1 Q.B. 752, but see Tithe Redemption Commission v Runcom Urban DC [1954] Ch 383).

The owner of the sub-soil of land, of which the surface belongs to another, may maintain an action for trespass to the subsoil (Stammers v Dixon (1808) 7 East. 203; Cox v. Glue (1848) 5 C.B. 533).

The position of co-owners. One co-owner cannot sue another co-owner for trespass unless he has been wholly excluded from the land (Murray v Hall (1849) 7 C.B. 4412). In such a case the court may order one co-owner to pay to the other a sum in the nature of an occupation rent (Dennis v McDonald [1981] 1 W.L.R. 810). (Otherwise the remedy of one co-owner against another is an action for partition or for an account.).

Damages. In the case of entry without physical damage, damages are the sum a reasonable person would pay for the right of user (cf. Philipps v Homfray (1871) L.R. 6 Ch. 770). If a residential property or a property that might have been rented out is unlawfully occupied, then a “reasonable rent” can be claimed even without proof that letting could have been possible (Swordheath Properties Ltd v Tabet [1979] 1 All E.R. 240; and Inverugie Investments Ltd v Hackett [1995] 3 All E.R. 841 PC).

In the case of physical damage to land the normal measure of damage is diminution in value (see, e.g. Nalder v Ilford Corp [1951] 1 K.B. 822). However, actual expenditure may be recoverable where the expenditure is reasonable in terms of repair and reinstatement and the claimant intends to do the work himself (Perry v Sidney Philipps & Sons [1982] 1 W.L.R. 197) on the grounds that this is the manner in which to put the claimant in the same position as he was in prior to commission of the trespass (Dominion Mosaics and Tile Co v Trafalgar Trucking Co [1990] 2 All E.R. 246 CA). In cases of encroachment, the level of damages may take into account the increased value to the defendant for any taking of property – Horsford v Bird [2006] UKPC 3. See, where land is appropriated by an individual, in the relevant approaches to culminating mesne profits: Ramzan v Brookwide Ltd [2010] EWHC 2453 (Ch).

“Aggravated” damages may be awarded where the trespass was high-handed and “insolent” (Jolliffe v Willmett & Co [1971] 1 All E.R. 478).

Limitation. Classic trespass cases (called trespass “quare clausum fregit”) must be brought within six years of the cause of action accruing: Limitation Act 1980 s.2.

Actions for the recovery of land must be brought within 12 years of the cause of action accruing to the claimant or to the person through whom the claimant now claims: Limitation Act 1980 s.15(1) and Sch.1 Pt II in the case of the Crown or corporations sole.