Tort Law Essay: Land Trespassing
Since time in memorial, there have been various laws that have been developed with a particular application and uses whenever cases have been raised in the legal sector. With time new laws are being established depending on the criminal evolution and legal civilization that is taking place in the world today. One of the universal laws that have been developed in the legal world is the Tort Law which has been in the application in various fields of life. Tort Law has been established in the legal perspective from the development of the human rights that have advanced to a level that they need to be protected.
After the advancement of the right to land ownership, there have been numerous laws that have been developed to protect it. Amongst this law is the Tort law for trespass which aims at ensuring that when a person owns a land by either means, they have authority over controlling all the activities that take place in that land. Tort Law of Land trespass has been designed in such a way that legal bodies can protect an individual from being invaded from, outside. When trespass Tort law is mentioned, there is a confusion that is arrived at a majority of individual’s think of hooded youths of hooligans who sneaks to another person’s land without the permission of the owner and with an ill purpose of ruining the materials in such a locality.
Definition of Tort Law of Land Trespass.
According to chapter 18 of Horsey and Rackley, the authors define the Tort law of the land Trespass as the form of trespass which entails an individual entering into another person’s land without his or her permission, remains upon the land, projects or places any object upon the land. The Tort law of Land Trespass is “actionable per se without the complainant having to prove the damage suffered.
The interference must be intentional although the intention refers to the action that is initiated by defendant voluntary but not necessarily the intention to trespass. Therefore, deliberate entry upon the land is sufficient, and it is not relevant that the defendant to know he was entering the claimant’s premises as where a cross-country walker innocently strays off a footpath. Similarly, it is no excuse that the defendant mistakenly believed that the entry was authorized or that he reasonably and honestly believed that the premise was for another person. Where the entry is involuntary, e.g., because the defendant was pushed onto the land or fell on to it during an epileptic fit, there is no trespass.
Trespass to land consists of interference with possession; it does not protect ownership. Only the person in possession of the land can sue, thus where there is a tenant only that person can bring an action, not the landlord. Indeed, in appropriate circumstances, an action may be brought against a landlord unless his entry was by the terms of the lease. A landlord may sue, however, if there is damage to his reversion, as there would be, for example, if trees were chopped down by a trespasser. Possession entails the intention to own the land and to practice physical control of, or authority over, the land to the exclusion of a person who is not a party to the agreement initially stated.Possessions also extends to things which are beyond a person’s immediate physical control. So, for example, a person does not cease to be in possession of her/his home simply because of s/he is out at work or on holiday. By contrast, a lodger in another’s house does not have possession, nor does a hotel guest, although each may have exclusive use of the room. Similarly, a bare licensee who has the use of the land whether commercially or residentially does not have possession in these regards.
The Interference
For the purposes of establishing trespass to land, the interference must have a direct and immediate physical consequences. If it is indirect or consequential, liability may arise in nuisance or negligence. A few basic examples can be used to illustrate the distinction. If D builds a wall on P’s land, this is trespass, but if the wall is built on D’s land and then falls onto P’s land this will be nuisance or negligence. It is trespass to plant a tree on another’s land, but a nuisance if the tree is planted on D’s land and the roots or branches spread over the boundary.
How Trespass Occurred
The most well-known type of trespass is section by the litigant on to the inquirer’s territory, yet it can take different structures, for example, putting objects on the land or setting them in contact with the property, e.g., a stepping stool against a wall. A man who was legitimately owns the land, since he had consented to be there or was practicing a privilege of section, will turn into a trespasser on the off chance that he mishandle the authorization or ideal by acting outside the reason for which it was without a doubt, or on the off chance that he stays on the land after it has lapsed.
Trespass to the ground beneath the surface
An intrusion into the subsoil is as much a trespass as is entered upon the surface, and subsoil and surface may be possessed by different persons. If A possesses the surface of land and B the subsoil then walking across the land will be a trespass against A but not against B. If a hole is dug in the land then this is a trespass upon it and is against both A and B. However, if X bores a hole from his land into the other person subsoil then this is a trespass against this person but not against A. An excellent case is that of Bulli Coal Mining Co v Osborne [1899] AC 351[1]Where Coal mining was done on somebodies land without the Osborne permission. The case was decided in favor of Osborne since he had all the right in which no one was allowed to carry out such activity on another land.
Trespass to the Airspace
Ownership of land extends to the airspace above it. An individual or organization can be termed to commit an offense when without authorization invades an air space above somebody’s land. This is a trespass that has been brought to book. An excellent example of the case illustrating Trespass to the airspace is the Kelsen v Imperial Tobacco Co (1957) 2 QB 334[2].This is an illustration of Tort law where it was decided. It should be understood that land ownership right in the airspace extends to a height level where ordinary enjoyment of land and structures reaches. This implies that when the aircraft among other moving objects pass over a reasonable height, it cannot be considered as trespass.
Another case that can be used to explain what airspace is all about included that of Bernstein v Skyviews & General Ltd (1978) QB 479[3]. Where states that for this situation that in such conditions an adjust must be struck between the inquirer’s rights and the privilege of the general population to appreciate the benefits of science and innovation. In any case, the state of mind of the law appears to change where the affirmed trespass comes about because of the nearness of a structure on bordering land which overhangs into the airspace of the petitioner’s territory. In such conditions, there will be a trespass regardless of the possibility that the obstruction is at such a tallness, to the point that it would not ordinarily influence the inquirer’s utilization of his/her property.
Defences
1) Consent
A person might not be referred to as a trespasser if there was an initial permission that was given by the possessor. In this regard, the permission or license may be implied or express. The law recognizes that without express arrangement despite what might be expected there is an inferred permit for people to approach houses up to the front entryway or to enter ‘the general population territory’ of business premises to talk with the occupier.
Focusing on the Davis v Lisle (1936) 2 KB 434[4] It is a clear illustration where licence, implied or express, was revoked then the person was granted reasonable time to vacate and remove belongings before which the law would refer to it as trespassing. Also, there were possibilities that an individual would be instructed to vacate before such time has elapsed unless there are signs of leaving. On the question of what amounts to a revocation, it is essential to distinguish between words demonstrating that the license has been revoked and those which are merely abusive. The case of Robson v Hallett (1967) 2 All ER 407Can be used as an example to illustrate this5.
On the case is that of Snook v Mannion (1982) RTR 321 where the licence is express a number of distinctions need to be made; An exposed permit is one which is conceded other than for profitable thought and might be renounced whenever A second possibility is a contractual licence, i.e. granted for valuable consideration5. A common example of such a licence is one that has been granted for a limited period and for a definite purpose. Such licences are, in general, irrevocable until the period has expired and the purpose accomplished. This would apply, for example, in the case of a license to enter a stadium to watch a football match, or a cinema to watch a film.
2) Necessity
The necessity defence is usually available in actions related to trespass to land although it is limited to urgent situations of imminent peril. Thus, the defence was not available in the case of Southwark L B C v Williams (1971) where homeless persons had entered unoccupied premises in order to ‘squat’5. This will depend on all the circumstances including the question of whether human life was at risk or merely property. The question of whether the situation was one of necessity or not is determined by having regard to the state of things at the moment the interference to land occurs. Subsequent events may show that the trespass was, in fact, unnecessary but this will not deprive the defendant of the defence. In the case itself, the defence of necessity was available to the police because it was not their negligence which had created the emergency. However, the police were held liable in negligence because they had no fire-fighting equipment with them when they fired the CS gas.
Trespass To the Person
This category of trespass is concerned with direct and immediate interference with the claimant’s person without lawful justification. This can be illustrated in the case of Horsey and Rackley, Ch. 15[5] .Trespass to the person is enforced without proof of damage.
Historically, it was possible to commit trespass to the person negligently as well as intentionally. However, following the cases of Letang v Cooper (1965) and Wilson v Pringle (1986) trespass to the person is effectively limited to intentional conduct by the defendant – intention relating to the defendant’s actions rather than the harm which results from that place.
So far as the consequences of the defendant’s actions are concerned, ‘intention’ is also required, although in this context this also includes subjective recklessness (Iqbal v Prison Officers’ Association (2009) per Smith LJ).Trespass to the person comprises three distinct torts which will now be considered in some detail.
Assault
An attack is a demonstration of the respondent which makes someone else sensibly secure the curse of quick, unlawful power on his individual. An ambush does not require contact – simply the anxiety of contact. Fear is not a requirement of the tort. The test is whether the claimant apprehended a battery, regardless of the effect this had on him. Usually an assault will precede a battery as where a person sees a blow coming and then shortly afterwards feels it. However, there may be an assault without a battery (and vice versa). Focusing on the case of Thomas v N.U.M. (South Wales Area) (1985) 2 All ER 1[6], the courts have often given a generous interpretation to the requirement of immediacy in this context and it appears from R v Ireland and R v Burstow (1997)[7] that this includes cases where the apprehension is one of an imminent application of force.
In certain circumstances there may be an assault even though the defendant cannot carry out his threats in fact, provided that the claimant reasonably believes that he has – consider the pointing of an unloaded gun at a person who is unaware that it is unloaded. In the case of Tuberville v Savage (1669) 1 Mod 3, by contrast, words spoken after the significant actions will not prevent liability arising and, also, where the words spoken amount to a conditional threat of immediate, unlawful force then an assault will have taken place. A conditional threat is one where the victim’s safety is conditional upon his compliance with the defendant’s unreasonable demand.
Tort Law Essay: Land Trespassing
Bibliography
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- Brunyate, J. (1931). Fraud and the Statutes of Limitations. The Cambridge Law Journal, 4(2), 174-188. ↑
- Kouladis, Nicholas. “The Law of Torts.” Principles of Law Relating to International Trade (2006): 63-73. ↑
- Wei, George. “Surreptitious takings of confidential information.” Legal Studies 12, no. 3 (1992): 302-331. ↑
- RMS. “Tort. Trespass to Land. Entry by Police on Private Premises in Execution of Duty, but without Search Warrant. Held, No Right to Remain after Request to Leave. Davis v. Lisle.[1936] 2 KB 434.” The Cambridge Law Journal (1937): 260-261. ↑
- Horsey, Kirsty, and Erika Rackley. Kidner’s Casebook on Torts. Oxford University Press, USA, 2015. ↑
- Wallington, Peter. “Policing the Miners’ Strike.” Industrial Law Journal 14, no. 1 (1985): 145-159. ↑
- Heaton, Russell, and Claire De Than. Criminal law. Oxford University Press, 2010. ↑