TRESPASS TO

LAND
Dr Hanim Kamaruddin
2021/2022
 Definition to Trespass to Land
• Ownership of land (s. 13 NLC):
i) Surface of the earth
ii) Earth below the surface
iii) All vegetation or other natural products
iv) All things attached to the earth or fastened
v) Land covered with water
• Any deliberate and direct invasion of land (unreasonable interference) whether it
causes damage or not is actionable per se.
• It is a tortious act that consist of: (what amount to trespass)
1. Entering upon land in the possession of the Pf; or
2. Remaining upon such land; or
3. Placing or projecting any object upon it in each case without lawful justification
• Read Gregory v Piper(1820), League Against Cruel Sports v Scott(1985)
 Gregory v Piper(1820), League
Against Cruel Sports v Scott(1985)
• Facts
• Gregory (G) owned a pub called the Rising Sun with a stable-yard in the back which could be accessed by a back
gate through Old King’s Yard. Piper (P) owned the property surrounding Old King’s Yard and disputed G’s right
to pass through the yard to his stable. P employed a labourer (S) to lay down a quantity of rubbish, consisting of
bricks, mortar, stones, and dirt, near G’s stable-yard, in order to obstruct the way. Part of this rubbish rolled
against G’s wall and gates, and G refused to remove it. G raised an action of trespass against G.

• Issues
• The issue in question was whether a master could be liable for the trespass which occurred as a result of
instructions the master gave to another in his employment. P claimed he could not be held liable because he had
instructed S not to let the rubbish touch the wall, and the fact that the rubbish resulted in a trespass of G’s
property was due to negligence on S’s part.

• Decision/Outcome
• A master is liable in trespass for any act done by his servant in the course of executing his orders with ordinary
care. P was therefore liable for trespass as it was a probable and foreseeable result of the S‟s act which P had
instructed S to do. The trespass was a necessary or natural consequence of the act ordered to be done by P,
therefore making P as the employer liable.
 Special situations
•Trespass to highways
•Trespass to air space
•The nature of the Dfs act
•Trespass ab initio
 Trespass to Highways
• Hickman v Maisey (1900) – whether the Df was a trespasser when
he was watching/spying Pfs training of horses from the highway.
• Question: whether the use of the highway in the manner in which the
Dfs used it was in truth a use for the purpose for which a highway is
dedicated to the public
• What is the lawful use of highway? – purpose of passage
• Who is a trespasser? – a user of highway who acts unreasonably and
unordinarily
• Government of Malaysia v Kong Ee Kim (1965) – the act of
releasing chicken to the highway constituted a trespass –
unreasonable use of highway.
 Trespass To Air Space
• Lord Bernstein of Leigh v Skyviews & General Ltd (1978)
(Skyviews and General Ltd (S) took an aerial photograph a number of houses, including
Coppings Farm, Bernstein’s (B) country home. S then purported to sell the photograph to
B. B claimed damages for trespass onto his airspace and, or alternatively, invasion of
privacy for entering the air space above his property and taking the photograph without
his consent.)
• Issue of overflying aircraft – aerial photograph of Pfs house –
held as trespass?
• Pf relied on a Latin maxim where the owner of the land owns the
space above it up to heaven and the space below it down to hell
• Read Judge Griffiths opposed view on maxim
• Look also at Section 44 of National Land Code 1965
 2 considerations raised
1. Owner of land has certain rights in the air space above his land – e.g wire
placed over one’s land – Gifford v Dent – Kelsen v Imperial Tobacco –
signboard 8 inches projected over Pfs property
2. Does height matter? – No support that a landowner’s rights in the air space
above his property extend to an unlimited height – As long as the claimant
can show that the intrusion was at such height that it interfered with the
ordinary use and enjoyment of property and the structures erected on the
property
• It was held that a balance is created 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 declaring that
above that height, he has no greater
right….
• Read Anchor Brewhouse v Berkley
House(1987) – involved a crane which
hung over Pfs air space – limitation of
trespass of air space (invasion of lower
airspace necessary for his ordinary
enjoyment of that is actionable as a
trespass)
 The nature of the Dfs act
• Trespass to land is an intentional tort. However,
intention for the act is required, not an intention
to trespass. Consequently, deliberate entry is
required and lack of knowledge as to trespass will
not be a defence (Conway v George Wimpey &
Co [1951] 2 KB 266, 273).
Mistaken entry (Basely v Clarkson (1681) 3 Lev 37)

In Basely v Clarkson (1681) 3 Lev 37, the D owned land adjoining P's,
and while mowing his own land he involuntarily and by mistake mowed
down some grass on the land of P. P had judgment.

Involuntary entry (Smith v Stone (1647) Sty 65)

An involuntary trespass is not actionable: Smith v Stone (1647) Sty 65,

where D was carried onto the land by force and violence of others; there
was trespass by the people who carried D onto the land, and not by D.
Gilbert v Stone (1647) – Df threatened by others – Committed a trespass
even though it was done under duress- but his act in going onto Pfs land
remains a voluntary one
Negligent entry ( League Against Cruel Sports v Scott.)

A negligent entry is possible and was considered in League Against Cruel Sports v
Scott. The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in
pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought
an injunction against further trespasses. Park J issued an injunction in respect of one
area restraining the defendants themselves, their servants or agents, or mounted
followers, from causing or permitting hounds to enter or cross the property. Damages
for six trespasses were awarded. The judge said:

"Where a master of staghounds takes out a pack of hounds and

deliberately sets them in pursuit of a stag or hind knowing that
there is a real risk that in the pursuit hounds may enter or cross
prohibited land, the master will be liable for trespass if he
intended to cause the hounds to enter such land or if by his
failure to exercise proper control over them he causes them to
enter such land."
Trespass ab initio (from the beginning)
• The Six Carpenters Case (1610) – A common tavern – Df denied to
pay wine – does non payment makes the entry into the tavern
tortious?
• 2 deductions: -
a. When an entry ,authority or licence is given to any one by law,
and he abuses it, he shall be a trespasser
b. When is given by the party and he abuses it, he must be
punished for his abuse but shall not be a trespass ab initio
Read :
•Elias v Pasmore(1934),
•Chic Fashion v Jones (1968),
•Cinnamond v British Airports
Authority (1980)
 Defences
• Necessity – Usually in cases which deal with an
urgent situation of innocent peril – Rigby v
Chief Constable of Northamptonshire (1985);
Leigh v Gladstone; London Borough of
Southwark v Williams (1971)
• Involuntary intrusion by force –Smith v Stone
• Licence
• Rights of entry
Defence of Necessity - Rigby v Chief
Constable of Northamptonshire (1985);
• The police were found liable to pay damages for negligence having fired a gas
canister into the plaintiffs’ gunsmith’s hop premises in order to flush out a
dangerous psychopath. There had been a real and substantial fire risk in firing
the canister into the building and that risk was only acceptable if there was fire
fighting equipment available to put the fire out at an early stage. No equipment
had been present at the time and the fire had broken out and spread very
quickly.
• Held: The defence of necessity might be available to police officers when
looking at a claim for damage to property.
Involuntary intrusion by force –Smith v Stone

• Smith (S) brought an action of trespass against Stone (D) after D was carried
onto S’s land by force, and violence of others, and was not there voluntarily. D
was carried onto the land of P by force and violence of others; there was
trespass by the people who carried D onto the land, and not by D.
 Licence

A licence is a permission to enter land and may be express,

implied or contractual. A dictionary definition is as follows:

"In land law, a licence is given by X to Y when X, the occupier of

land, gives Y permission to perform an act which, in other
circumstances, would be considered a trespass, e.g., where X
allows Y to reside in X's house as a lodger. A bare licence is
merely gratuitous permission. A licence may be coupled with an
interest, as where X sells standing timber to Y on condition that Y
is to sever the timber; in this case the sale implies the grant of a
licence to Y to enter X's land.
For contractual licence see Horrocks v Forray [1976] 1 WLR 230.
See Street v Mountford [1985] AC 809." (LB Curzon, Dictionary
of Law, Fourth Edition).

If a licensee exceeds their licence, or remains on the land after it

has expired or been revoked, the licensee becomes a trespasser
(Wood v Leadbitter (1845) 13 M&W 838; Hillen v ICI (Alkali) Ltd
[1936] AC 65). Such a person is allowed a reasonable time in
which to leave (Robson v Hallett [1967] 2 QB 939; Minister of
Health v Bellotti [1944] KB 298).
 Rights of Entry
• A person may exercise a lawful right of entry onto land, for example:
• A private right of way granted to the defendant;
• A public right of way;
• A right given by the common law, such as the right to abate a nuisance; and
• A right of access given by statute

• E.g.easement: Trespass may also arise upon the easement of one person
upon the land of another. For example, if A grants B a right to pass freely
across A's land, then A would trespass upon B's easement by erecting a
locked gate or otherwise blocking B's rightful access.
 Remedies

•Damages
•Injunction
Damages
i) Damages for diminution in value to the plaintiff
ii) Cost of reasonable reinstatement of the property (for plaintiff in possession
with full ownership)
(the object: to put plaintiff in the position he would have been in the tort did not
happen)
• First measure is to take value of property in undamaged state and compare it in
its damaged state – plaintiff entitled to the difference
• Second – looking at the cost of repair or reinstatement (amount if P wants to
sell it in its damaged state/ (cost of repair) if P wants to repair.
Injunction – court instructs D to discontinue the act of trespass
Damages for Trespass to land
• Loss of market value
• Costs of restoration
• Loss of use of the property
• Physical injury to the person or to the land
• Emotional distress
• Discomfort and annoyance