Trespass to land 255If it were not for the defence of statutory authority, coal mining companies would commit
trespass when mining under land and aeroplanes would commit trespass when flying over
land.
Trespass to land can be caused intentionally or negligently. In order to sue, the
claimant must either be in possession of the land or have a right to be in possession of
the land.
Defences
Statutory authority
This defence was explained above, in relation to private nuisance.
Justification
There are many circumstances in which a person has legal authority to enter another’s land
without committing trespass. For example, the police have the right to enter land to make
an arrest and the general public have the right to walk the highway.
Permission
If the claimant expressly or impliedly gives the defendant permission (licence) to enter his
or her land then the defendant cannot commit trespass to land while adhering to the terms
of the permission. It is usually taken for granted that a person has permission to approach
a house and knock on the door, unless that person has already been prohibited from doing
this.
Remedies
Damages
Damages can be awarded to put the claimant into the position he or she would have
been in if the trespass had not been committed. These damages might cover matters such as
damage to land or buildings, loss of profits or the cost of repairs. Even if no loss or damage
is suffered the claimant may be awarded nominal damages.
Injunction
An injunction can be awarded to prevent a continuing trespass.
The relationship between nuisance, Rylands vFletcher and trespass to land
These torts have developed over many years and there is some overlap between them.
In outline, we can say that trespass to land involves a direct physical invasion of land; that
private nuisance is not a direct physical invasion but an unreasonable interference with the
use and enjoyment of land; that public nuisance is an act or omission which endangers the
public or prevents the public from exercising rights; and that the rule inRylands vFletcher
arises when any non-natural thing brought onto the land (or allowed to accumulate there)
causes mischief when it escapes.
Table 9.1 compares nuisance, public nuisance, Rylands vFletcherand trespass to
land.