This tort protects the interests of plaintiffs in maintaining their land free from physical intrusion

Transcription

1 Trespass t Land Definitin: Intentinally r negligently entering r remaining n, r directly causing any physical matter t cme int cntract with, land in the pssessin f anther is a trespass. This trt prtects the interests f plaintiffs in maintaining their land free frm physical intrusin It is nt the functin f the trt t prtect wnership as such Nnetheless, because the wner is ften in pssessin, the purpse f many a suit is the settlement f disputed rights ver land, which may be backed by the sanctin f an injunctin. Trespass is actinable per se Prvides a useful remedy fr the vilatin f a persn s privacy where that vilatin takes the frm f unlawful intrusin n that persn s land r premises In recent years Australian curts have demnstrates a willingness t grant injunctins t restrain the televising f film and sund recrdings btained in the curse f the trespass What is land? Old Maxim cuius est slum eius est usque ad celum et ad infers whever has the earth als has the heavens abve it and depths belw it (r the rights in the sil extend t heavens and t hell) Surface: including things attached t it (eg buildings n land, fences and trees) and grwing n the surface Belw surface Yu practically wn it. (cmmn law stance) Abve surface (ie airspace) but hw high? Test = whether physical intrusin int airspace interferes with rdinary user LJP T walk n the surface f the plaintiff s land is enugh t cnstitute the trt Anything attached t the sil, and capable f being separately pssessed, may be the subject matter fr trespass quare clausum fregit including damage t grass. Pssessin f land may be separated hrizntally.

2 In Australia, public rads have nt been regarded as the prperty f the cterminus wners f the land, being riginally vested in the Crwn and generally handed ver t municipal crpratins One result f this has been that the curts have widely cnstrued t pwers f highway authrities, regarding the fee simple f the land in which public streets are laid ut as vested in the authrity, and nt merely the fee simple f the surface. Members f the public enjy a right f way ver the highway but if a persn uses a highway fr purpses ther than thse reasnably incident t its user as a highway t use is a trespass. The purpse need nt be unlawful It may be trespass t tunnel beneath the surface f land, t mine there, in the absence f specific prvisin t the cntrary, the wner f the land has the right t exercise cntrl ver the grund underneath t a cnsiderable depth. Davies v Bennisn D sht a bullet acrss the land and it killed P s cat Bullet is ging ver the land s it s a trespass t land but it s nly transient Hwever, it was held t be a trespass fr the time it travelled acrss the airspace. Bernstein v Skyviews & General Ltd D tk an aerial pht f P s huse frm a plane N trespass t land as it was an incursin at a height were there was n interference with the rdinary user f the land We have t balance the rights f the wner with the rights f the public The balance is best struck if we restrict the height t that f rdinary usage. Was 700 feet in the air Taking the pht didn t turn it int a trespass, the trt des nt prtect privacy as such Simply taking the pht was nt enugh t lse their prtectin frm the act Curt suggested that perhaps cnstant surveillance frm the air culd be trespass Kelsn v Imperial Tbacc D had a big billbard which was 8 inches ver P s prperty

3 It s a permanent intrusin: an apprpriate remedy wuld be a mandatry injunctin Was a trespass WRONGS ACT 1958 (VIC) s 30: N actin fr trespass r nuisance nly because an aircraft flies ver prperty at a height abve the grund which having regard t the wind, the weather and all the circumstances is reasnable, r the rdinary incidents f such flight s lng as Air Navigatin Regulatins are cmplied with s 31: Where material damage r lss is caused t any persn n land r water by an aircraft whilst in flight taking ff r landing then, damages shall be recverable frm the wner f the aircraft withut prf f negligence Dn t have t shw fault. Strict liability. If smething falls ut f the sky, they must cmpensate yu fr it LJP Investments Pty Ltd v General Ltd D was a prperty develper They had t g n neighburs land t build the huse The scafflding didn t start til 4 metres up There were tw psts sunk int the land and it came 1.5 metres up P asked fr payment, P disagreed D built it anyway D argued scafflding was nt interfering with P s use f the land Curt held it was a trespass and endrsed the last case. Relevant test is nt whether the incursin actually did interfere It is that it may interfere with the rdinary user f land Elements 1. Standing t sue 2. Interference must be direct result f defendant s act

4 a. (eg Suthprt Crpn v Ess Petrleum) b. Argument abut degree, lk at the facts f the case. If it s nt direct, yu culd sue in nuisance 3. Actinable per se a. (eg Dumnt v Miller) 4. Defendant s act must be psitive & vluntary 5. Fault a. (eg Public Transprt Cmmn f NSW v Perry) a. Defendant must have intended t d, r been negligent in ding, the act that is the trespass t land b. (eg League Against Cruel Sprts v Sctt althugh query burden f prf). 6. Was there cnsent? 7. Defences 8. Remedies Standing t sue P must have a legal estate and exclusive pssessin f the land at the time f the interference Exclusive pssessin: Tenants wh acquire exclusive pssessin under lease can bring actin fr trespass t land against third parties Smene with interest in land (ie easement r prfit a prendre) Landlrd can bring actin n the case fr damages fr damage t the reversin If yu shw the land s been damaged they can sue fr damage t their reversinary interest Only a tenant and nt a landlrd can sue if a third party trespasses n the land The tenant in pssessin may als sue the landlrd fr trespassing n the land McIntsh v Lvel Kirby held that where the tenant is a ne-persn cmpany, that cmpany being the alter eg f its managing directr, the latter has sufficient pssessin t sustain a suit in trespass

5 A ldged may be able t sue in trespass if, n the facts, he r she had exclusive ccupatin relevant fact includes whether they had pssessin f an utdr key and the right t bar access t the rms. Smene like a htel guest wuld nt have sufficient interest t sue. Sme authrity fr the prpsitin that where a married cuple live tgether but where nly ne f them is the legal ccupier nly that individual will have standing t sue in trespass. Whether a plaintiff has exclusive pssessin is a questin f fact and ne especially difficult t decide where cntractual arrangements fr presence upn land are interfered with. It is n defence t a wrngder that the pssessin f the plaintiff in respect t anther third party is unlawful, the fact f pssessin is enugh t establish P s title and the wrngder cannt plead jus tertii unless it is als t assert that the interference with pssessin was cmmitted with the authrity f that third party. The persn with the legal title is assumed t be the trespassr. If yu ve just gt a licence, an interference with that licence where yu ve suffered actual damage may be sue-able in trts, yu might be able t sue in actin n the case Vaughan v Shire f Benalla P had a licence t use the land and P had a licence t graze sheep D was dumping sewage P sued D and wn even thugh he didn t actually have pssessin f the land There was a trespass f D against crwn and there was actual damage t P. P wed blck which faced land and D did t P emplyed smene t mw it and maintain it They paid rates n land and blcked anyne Tld everyne it was their land Curt decided it was in their exclusive pssessin It was still trespass Interference must be direct result f defendant s act

6 The act must be direct. The immediate act must cnstitute the trespass cmplained f; it is nt trespass if the invasin f the plaintiff s land is merely cnsequential upn the act f the defendant The P wh cmplains that the defendant has erected a sput t drain away water frm the eaves f the huse f the defendant which then drips n their land, can nly sue in case, nt trespass T cause sme freign matter t enter r t cme int physical cntact with the land f the P is a trespass Examples Firing a gun int the sil Placing a ladder against r driving nails int the wall f P s building Encuraging a dg t run nt P s land Remving the drs r windws Thrwing a persn nt anther s land Operating a bulldzer s as t cause earth t fall nt and damage P s prperty Suthprt Crpn v Ess petrleum Lrd Denning il discharged by defendant and carried by tide t plaintiff s freshre was cnsequential and nt direct enugh fr trespass Cf Mrris LJ if defendant deliberately emplys frce f wind r mving water t cause a thing t g n t land the act wuld be sufficiently direct t cnstitute trespass There was n trespass because it was indirect as wind and tide brke the chain f causatin Hwever minrity said if smene used the wind r tide purpsefully t trespass, it culd be direct enugh Frms f interference The intrusin nt the plaintiff s land must result frm sme act r missin by the defendant r persns fr whm he r she is respnsible. Entering nt land including airspace immediately abve land T remain n land after a trespassry entry theren is in itself als a trespass. A cntinuing trespass Knskier v B Gdman Ltd

7 Directly placing r leaving an bject n land r causing it t make cntact with land even thugh defendant desn t tuch land Eg Watsn v Cwen (Tas 1959) trespass = pushing earth n land with bulldzer Yakamia Dairy Pty Ltd v Wd (WA 1976) releasing cattle nt land There is a cntinuing trespass nly when that which cntinues after the first actin is itself a trespass, hence, fr a persn t remain r leave gds n land wuld be such a trespass Lavender v betts D was the landlrd f a flat P was a tenant nt paying their rent D came t flat, kncked n dr, was welcmed inside Once he gt in there and let ther tradesmen in and began t pull ut drs and windws Curt said it was a trespass t land Perrera v Vander P is in arrears D turned ff gas and electricity frm utside the flat He didn t have t g int the flat Nt trespass Knskier v Gdman Owner f huse gave D permissin t pull dwn the chimney and rebuild it Gt permissin frm huse next dr Hwever they left all the remnants f the ld chimney n the rf The rubble meant the huse became flded D sued P in trespass Was a trespass as they nly had a limited licence and they were meant t mve it nce they finished It was a cntinuing trespass frm the day the P mved in as tenant