WHAT IS TRESPASS TO LAND? (Or Trespass quare ckmsiim fregit — Direct interference with land in possession of another).
1. This is the name of that species of wrongs redressible at common law by the old writ of trespass which deals with unjustifiable interference with land in the possession of another.
In Blackstone’s Commentaries,’ we find the following description of the tort: “Every unwarrantable entry on another’s soil, the law entitles a trespass by breaking the close; the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man’s land is in the eye of the law, enclosed and jet apart from his neighbour’s; and that, either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of the law, as when one man’s land adjoins to another’s in the same field.”
2. The torts protects the interest of the plaintiff in having his land free from physical intrusion. It does not protect ownership as such, but possession; however, since often the owner is in possession, the purpose of many suits in trespass is not only recovery of damages, but to settle disputed rights over land. Thus the toil serves three distinct purpose: (a) it provides _damages in the law; (b) it settles title to land; and (c) it provides protection against abuse of powers by officialdom. Possession here means power to use the land and to exclude others, i.e. occupation or physical control of the land and power to exclude others.
3. The tort may thus be comprehensively defined as “intentionally or negligently entering or remaining on or directly causing any physical matter to come into contact with land in the possession of another.” That is to say, it is a trespass to enter or remain on the land of another intentionally or negligently or to cause anything which has mass to come into direct contact .with land in the possession of another, e.g. throwing stones on to the land.
What arc the elements of this Tort? What constitutes the trespass?
4. What are the elements of this tort? What constitutes the trespass?
–DIRECT ACT
As a trespass, the act complained of must be direct, e.g. crossing the land, felling trees, shooting over the land, shooting into the land: sec Pickering v. Rudd, per Lord Ellenborough. In that case the house of Rudd adjoined to the garden of Pickering A Virginian Creeper which grew in the garden of Pickering spread itself over the side of Rudd’s house. Rudd a barber, decided to hang a sign board on that side of the house covered by die Virginian Creeper. He managed by means of ropes and a scaffolding suspended over the garden, without touching the surface: of Pickering’s premises, to cut away such a portion of the creeper as was sufficient to admit his sign board and fixed the board to his own house, projecting sonic three to four inches from the surface wall. Pickering sued Rudd for trespass, alleging both the cutting of the creeper and the projection of the board into his air space. Rudd justified the cutting by the fact of its projection into his premises. Pickering argued that more harm had been done by Rudd than was necessary. Verdict for Rudd Mere Lord Ellenborough expressed the view that it is a trespass to lire a gun into someone’s land. Lord Ellenborough also said it would not be a trespass to pass over a man’s land in a balloon.
–POSITIVE ACT
The tort depends on an affirmative/positive act. An omission to act leading to interference with another’s land, does not constitute a trespass, although it may provide the foundation for an action in nuisance. As noted already, there must be an affirmative act by the defendant, e.g. (i) A fells a tree which falls into B’s land — trespass; (ii) A discovers a tree on his land eaten by termites and ready to fall but does nothing about it. On a windy day, the wind blows down the tree and it falls into B’s land — no trespass. This is because this was not the result of a positive act; neither does it flow from a direct or immediate act.
–PHYSICAL INTERFERENCE
There must be physical interference with the land. As an example, we may look at the case of Lavender v. Belts. The defendant let to the plaintiff a flat consisting of the first and second floors of a dwelling-house on a weekly tenancy basis. The plaintiff was making irregular payment of the rent. The rent fell into arrears. After about two years, he served a notice to quit on the plaintiff who ignored the notice and continued in possession. In February 1941, the defendant gave another quit notice and from April refused to receive any rent in order to avoid any waiver of the quit notice. In November 1941, the defendant, without making an application as he was required by statute, i.e. the Increase of Rent and Mortgage Interest Restrictions Acts, 1920-1933 to a court for possession, because the plaintiff had become a statutory tenant, obtained admission to the flat on the pretext of going to have a private discussion with the plaintiffs wife. He gave instructions to men he had brought with him to remove all the doors and windows, with the result that the plaintiff could live in it only at considerable discomfort and danger to his health. The defendant had asked police to be present while the windows and doors were being removed. The plaintiff sued for trespass and breach of the covenant for quiet enjoyment. It was held he must succeed and punitive damages would be awarded, per Lord Atkinson.
We may contrast this with the decision in the case of Perera v. Vandiyar. In this case also, the plaintiff was a statutory tenant. To evict him, the landlord cut off the supply of gas and electricity to the Hat from his end of the premises and the tenant was forced to leave. After a week, the supply was reconnected. The tenant then sued the landlord for breach of the implied covenant for quiet enjoyment, and an injunction restraining the landlord from further breaches of that covenant. He also added a claim for damages for eviction. Judgment was given to the plaintiff and the landlord appealed on the question of damages. Held, allowing the appeal, that there was no tort of eviction. That any evidence of eviction on the facts amounted only to a breach of contract. There was no interference with any part of the premises and therefore no action in trespass, per Sir Raymond Evershed M.R., Birklett L.J., Romer C.J.
–LACK OF CONSENT
Where a person enters someone’s land with the leave and licence of the landlord, then the licensee becomes a trespasser, if he refuses to leave after the licence has been revoked, i.e. he overstays, provided he has been given reasonable lime to leave the premises. What is reasonable lime will depend on the situation. We may illustrate this point with two cases: Hurst v. Picture Theatres Ltd. The plaintiff had paid six pence to watch a film at the defendant’s cinema theatre. After the performance had begun, the plaintiff who was suspected by management to have entered without paying was asked to leave but he refused insisting that he had a ticket. Eventually, he was forced out. He brought this action for assault and false imprisonment. The defendants justified their conduct, inter alia, on the grounds that they were entitled, without assigning any reason, to ask the plaintiff to leave the theatre and if he refused, to remove him forcibly. Judgment was given to the plaintiff and the defendants appealed. The appeal was dismissed.
The appellate court noted that: “the purchaser of a ticket for a seat at a theatre or other similar entertainment has a right to stay and witness the whole performance provided he behaves properly and complied with the rules of management. The licence granted him by the sale of a ticket includes a contract not to revoke the licence arbitrarily during the performance.” So battery and false imprisonment were committed on him.
The second case was Cowell v. Rosehill Race Course Co. Ltd. Here the plaintiff-appellant sued the defendant-respondent for damages for assault. The defendant replied by saying that the plaintiff was trespassing on his land and what he alleged to be assault was the reasonable force he had used to remove him from the land. The plaintiff had paid four shillings to watch a race meeting being held by the defendants. In the course of the meeting, the defendants asked the plaintiff to leave and, upon his refusal, forcibly removed him from the course. The plaintiff alleged further that he had acquired a right to be there which could not be prematurely revoked, and that the purported revocation was ineffectual.
It was held (Evatt J. dissenting), that no action for assault would lie, reasonable force having been used for the removal. This is because the plaintiff merely had a contractual right which was revocable mid not a proprietary interest in the land. If the right was unjustifiably interfered with, his proper course would be an action for breach of contract. The court declined to follow the English decision of Hurst. Since then the conclusion in Cowell has been preferred to that of Hurst. So if you are on somebody’s land with his permission, then you commit no trespass. You become a trespasser only if he revokes your licence and you still remain there after: see also Robson v. Hallett.
The defendant need not enter the land physically but by forcing objects to get onto the land of A, or by causing some foreign matter (anything with size or mass such as gas, flame or beams from torchlight) to enter or come into physical contact with another’s land, he commits a trespass. — Recall Pickering v. Rudd .
–THE ACT MUST BE VOLUNTARY
The act complained of as the trespass must be the voluntary act of the defendant Here it is immaterial whether A was aware he was trespassing. But, if through the action of others, the defendant trespasses on the land of A, it is those others who are liable to A in trespass. This is illustrated by Smith v. Stone.11 In that case, an action was brought against Stone for trespass to Smith’s land. Stone pleaded that he was forcibly carried onto Smith’s land by others and did not go there on his own volition. Justice Roll held that the trespass was committed by those who carried Stone onto Smith’s land and not Stone. He gave this example: If A drives my cattle onto B’s land, A is the trespasser and not I, the owner of the cattle.
But we must distinguish (a) involuntary acts of the kind described above from (b) an honest mistake. Mistake, as such, is no defence in trespass. If you cut your neighbour’s grass in bona fide belief that you are cutting your own, it is nonetheless trespass. Here it does not matter whether the mistake is one of law or fact, provided the physical act of entry was voluntary, e.g. A strays off a footpath in the dark or B delivers goods by mistake to the wrong address and places them on the land of the occupier without his consent. A and B are liable in each example in trespass to land.
Thus, in Basely v. Clarkson,1″ the defendant, in mowing grass on his own land, mistakenly, because the boundary between his land and the plaintiff’s was ill-defined, mowed the plaintiff’s land and took the grass away. He paid the plaintiff two shillings as sufficient amends when the action was instituted against him. It was held that this was trespass because the act appeared voluntary and his intention and knowledge are not traversable, i.e. they cannot be known.
–STATE OF MIND OF DEFENDANT
As in all cases of trespass, the plaintiff must prove that the defendant acted cither negligently or intentionally and the tort action will succeed without the necessity of proving damage.
WHO MAY SUE IN TRESPASS TO LAND?
Trespass lo land is actionable at the suit of the person in possession of the land at the time when the trespass was committed, Possession entails, inter alia, the occupation or physical control of the land. The degree of physical control necessary to constitute possession may vary from case to case. The type of conduct which indicates possession will vary with the type of land. In the case of a building, for example, possession may be evidenced .by occupation, or, if unoccupied, by having the key or oilier means of entry: see Wuta Ofei v. Danquah per Lord Guest (P.C.).
In that case, the plaintiff acquired land which he did not immediately occupy but put pillars on. The defendant built on it. It was held to be Trespass. The presence of the pillars was taken to evidence possession.
Examples of acts amounting to possession:
a) Building a wall around it;
b) shooting over it
c) taking grass from it;
d) cultivating or using it for pasture; and
e) having the key to the house.
Proof of ownership is prima facie proof of possession. So is occupation. The rule as applied in Mensah v. Peniana is “Mellior est conditio posidentis ubi neuter his habet” — where both plaintiff and defendant are trespassers, the defendant will prevail. See also Oshodemirim v. Tetteh. In Graham v. Peat, the plaintiff with possession under a void statute, was held to have possession to maintain action for trespass. In trespass to land, averment of ownership amounts to averment of possession.
In Owiredu v. Mini Timber Co. Ltd., Ollennu J observed that it was a settled law that a person in possession of land, though himself a trespasser, is entitled to maintain an action for trespass against any person who disturbs his said possession except the person in whom title to the land is vested or anyone claiming in the right of the true owner (i.e. agent or representative).
In Nunekpeku v. Ametepe, the defendant pleaded that he was in possession. The Supreme Court therefore held that, in such a case, the plaintiff had to prove that he was in possession at the lime defendant entered upon the land and dispossessed him of it.
Note, however, that the mere use of land, without exclusive rights of possession, (i.e. the power to exclude others) cannot support a suit in trespass.
In Hill v. Tupper, an incorporated canal company, by deed, granted to the plaintiff the sole and exclusive right liberty of putting or using pleasure boats for hire on their canal. He brought an action against the defendant for setting up a rival concern on the canal. It was held that the grant did not create such an estate or interest in the plaintiff as to enable him to maintain an action in his own name against a person who disturbed this right by putting and using pleasure boats for hire on the canal. Chief Baron Pollock was of the view that the grant merely operated as a licence or covenant on the part of the grantors and is binding on them, as between themselves and the plaintiff. But it gives him no right of action in his own name for any infringement of the supposed exclusive right. If he has been disturbed, he must obtain permission from the canal company, to sue in their name.
Mere occupation of premises is also not sufficient to support an action in trespass, e.g. a lecturer in his bungalow is a licensee and not a tenant and so cannot sue. Similarly, lodgers, such as guests at a hotel and students in their dormitories, cannot sue in trespass because they do not have sufficient possession of their rooms. See, on this point, the decision in Allan v. Liverpool Overseers.
Again a servant who, for better execution of his duties, is given occupation of premises cannot maintain an action for trespass to the premises, in his own name. The last point is illustrated by the decision in White v. Bayley.20 In that case, the plaintiff was employed by the trustees of a society and paid £75 a year for managing and living on their premises. The agreement was terminable after six months’ notice. The trustees gave notice to quit and took possession of the premises. The plaintiff forcibly re-entered. In an action by the plaintiff, he was non-suited and the trustees obtained injunction compelling the plaintiff to give up possession Byles J in his judgment stated:
“The first count of the declaration complains of trespass to land. That clearly does not lie unless the plaintiff has some estate in the land the plaintiff had the use but not the occupation of the premises.”
Willes J pointed out by way of explanation that if the employee were held to be vested with occupancy, then the relationship of master and servant or principal and agent would not hold, since if the servant or agent has been guilty of misconduct and his appointment is terminated, the servant might set his master at defiance, and though the master be right in putting an end to the master-servant relationship, the servant might insist upon holding on until the expiry of a notice to quit.
SUBJECT MATTER OF TRESPASS
The subject matter of trespass is land and everything attached to it. The general rule is that he who owns the land is presumed to own everything “up to the sky and down to the centre of the earth.” Cujus est solum ejus est usque ad coelum et ad inferos — whosoever has the soil, also owns everything up to the heavens above and down to the centre beneath earth..
Land, in its legal signification, has an indefinite extent upwards so that, by a conveyance of land, all buildings erected on it, growing timber and water, being there upon it likewise pass. Any interference with the super-incumbent column of air may give rise to an action in trespass. In law, land extends also downwards, so that whatever is in a direct line between the surface and the centre of the earth belongs to the owner of the surface. The subject matter of this tort is thus land. This can be divided into surface soil, sub-soil and air space for purposes of the tort of trespass to land.
(a) Trespass to the surface
Any kind of direct interference with the surface is trespass, e.g., digging, throwing stones, cutting timber etc. Improper use of a highway may also constitute trespass. In Harrison v. Duke of Rutland‘,2~ the defendant owned the land adjoining the highway and the soil of the highway. The plaintiff went on the highway expressly to interfere with his game by driving away the grouse to be shot. He was asked to stop and, when he persisted, the servants of the defendant held him down until it was no longer necessary. He brought an action for assault and false imprisonment. The defendant counter-claimed that the plaintiff was a trespasser. Judgment was given to the plaintiff. On appeal by both the plaintiff and the defendant, the plaintiff on the sufficiency of amount paid and the defendants on the trespass issue, it was held that, since the plaintiff was on the highway for a purpose other than passing or repassing on it, he was trespassing. So the judgment given in his favour was set aside.
Again in Hickman v. Maisey, the plaintiff was the owner of land crossed by a highway. He let out pail to a trainer of horses for the training and trial of race horses. One could watch the training from the highway. The defendant who owned a publication which gave account of the performance of race horses in training used to stand on the highway to watch (spy on) the training. The trainer objected to this and the plaintiff gave the defendant notice to discontinue his practice. But he refused. On this occasion, he walked back and forth on a portion of the highways, the soil of which was vested in the plaintiff, for about one and a half hours with glasses and took notes. The plaintiff sued him for trespass and injunction to restrain him. Judgment was given to the plaintiff. The defendant then brought application for a new trial. It was held that the defendant had exceeded the ordinary and reasonable user of the highway and he was therefore guilty of trespass. His application was therefore dismissed.
(b) Trespass to the sub-soil
There can be trespass to the sub-soil especially where mineral rights have been granted away: see Cox v. Moulsey. So interference with the sub-soil is actionable as trespass at the suit of the person in possession of the sub-soil.
(c) Airspace
The law grants a reasonable airspace above the land to the person in possession of the land. It is a trespass to violate the allowed airspace above the ground. Here we may recall Lord Ellenborough’s statement in Pickering v. Rudd that it would not be a trespass to pass over a person’s land in a balloon. We may also note that, in this case, it was held that there was no trespass by the projection of the board into the airspace above the plaintiffs land.
This decision is inconsistent with the one in Kelsen v. Imperial Tobacco Co. Ltd.”‘ The defendants had erected three metal signs advertising their wares. With the permission of the plaintiff’s landlords, they replaced them with a new sign which encroached slightly on the airspace above the plaintiff’s roof. The plaintiff knew all about this because he allowed the defendants maintenance men to go on his roof through the skylight which he otherwise never used. Five years later, after certain business difficulties with the defendants, the plaintiff demanded the removal of the sign and when the defendants refused, he sued them for an injunction and succeeded. McNair J held that this was not a mere nuisance but a trespass and therefore injunction would lie. The case resolved any doubts as to whether mere interference with the airspace without physical contact could be trespass. Kelsen’s case has been distinguished from Pickering v. Rudd on the ground that here the interference was permanent.
But in Ellis v. Loftus Iron Co., the defendant’s horse kicked and bit the plaintiff’s mare through the fence and injured it. It was held that this was trespass by the horse for which the defendant was liable. The horse’s mouth and feet protruded through the fence over the plaintiffs land, — so it amounted to trespass, even though the trespass was transient.
Per Coleridge C.J.: “It is clear that, in determining the question of trespass or no trespass, the court cannot measure the amount of the alleged trespass; if the defendant place a part of his foot on the plaintiffs land unlawfully, it is in law as much a trespass as if he had walked half a mile on it.”
The Trespass in this case was transient. See also DOUGHERTY v. STEPP.
From these two cases (i.e. Kelsen’s & Ellis) it is clear that to violate someone’s airspace is trespass whether the violation is permanent or temporary. Note, however, that, by virtue of section 29 of the Ghana Civil Aviation Act, 2004 (Act 678), no action can lie in respect of trespass or nuisance by reason of transient harmless incursion of an airspace by an aircraft.
Another interesting case that deals with trespass to the airspace above someone’s land as a species of trespass to land, is Bernstein of Leigh v. Skyviews General Ltd. ° Are the landowner’s rights in the air space above the property unlimited? The answer in above case was in the negative. It was held (per Griffiths J) — that the right of the owner of land in the airspace above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it.