D. Intentional Interference with Land: Trespass to Land

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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Trespass to land provides a remedy for the direct, intentional (or negligent), and physical interference with land in the possession of the plaintiff. It is actionable without proof of damage. Trespass to land is

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committed in three ways. First, and most commonly, it is a trespass to enter personally onto land in possession of the plaintiff without permission. This covers a broad range of situations, including persons who break and enter, adults who mistakenly walk through a door marked "no admission," and young children who, lacking an acute sense of private property, wander wherever their curiosity or interest may take them. Second, it is a trespass to place objects on the plaintiff’s property. To kick a ball onto the property of the plaintiff, to deliver parcels to the wrong address, or to dump garbage onto the land of another person are acts of trespass. Trespass to land by leaving or placing an object on the land is referred to as a continuing trespass, which gives rise to new causes of action each day until the object is removed. The advantage of this principle is that the plaintiff’s trespassory remedies are protected from limitation periods and subsequent possessors may also have a remedy. Third, a trespass may arise when the possessor revokes a visitor’s permission or licence to be on the property. If the visitor does not leave the property within a reasonable time, he becomes a trespasser and reasonable force may be used to eject him. This arises most commonly when disorderly patrons and fans are ejected from bars and sporting events.

The formulation of trespass to land as a direct physical interference with land in the possession of the plaintiff allows the tort to protect a number of diverse interests. It was initially designed to protect land-holders from violent intrusion or eviction from their land. The development of a civil remedy reduced the likelihood of violence and protected the possessor’s interest in the peaceful enjoyment of his property. In modern tort law, trespass to land plays a much more sophisticated role. First, it protects the possessor’s interest in freedom of land use. The power to control entry onto land facilitates the use and development of it in accordance with the possessor’s desires and interests. A possessor of land is not required to accommodate others who may have a reasonable need or desire to enter his land. Second, trespass to land plays a conventional compensatory and deterrent role when an intruder damages land or destroys premises. Third, trespass to land plays an important role in the protection of privacy interests. The slightest intrusion into a person’s home or apartment gives rise to trespassory remedies. That a person’s home is his castle is, in no small part, due to the tort of trespass to land. Finally, trespass to land is an adjunct of the law of real property. It plays a role in the determination of competing land claims and the settlement of boundary disputes. It also provides protection to the possessor against the acquisition of prescriptive easements over his property as a result of twenty years of continuous trespassing in derogation of the possessor’s rights. The trespassory conduct may be trivial

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and harmless, such as a technical but permanent invasion of airspace or the use of land as a pedestrian right of way. Nevertheless, the tort of trespass to land allows the possessor to assert his proprietary rights and prevent the establishment of a prescriptive easement.152The capacity of the tort of trespass to complement property law is enhanced by the fact that trespass to land is actionable without proof of damage and also by the fact that mistake is no defence.

1) Elements of Liability

There are a number of essential elements to the tort of trespass to land. The intrusion onto the land must be direct. This requirement is common to all torts of trespass. Mann v. Saulnier153provides a good illustration. The defendant in that case built a perpendicular fence on the boundary line between his and the plaintiff’s property. In the course of time and weathering, the fence leaned marginally over the boundary line and into the plaintiff’s airspace. It was held that there was no liability in trespass to land because the intrusion was not direct.154The element of directness diminishes the power of trespass to land to deal with some environmental pollution. Oil spills that wash onto the plaintiff’s land, waste that is carried down rivers to the plaintiff’s land, and herbicides, pesticides, and airborne pollutants that drift in the wind to the plaintiff’s land are likely to be regarded as indirect interferences with land.155Damage caused by indirect interference may be actionable as a nuisance.

The defendant’s interference with land must be intentional or negligent. The burden of proof is, however, on the defendant. The plaintiff needs to prove only a direct interference with land. The defendant must then show a lack of intention or negligence. In practice, trespass to land is restricted to intentional interference because negligent interference will normally be pleaded in the tort of negligence. It is not necessary to show that the defendant intended to do a wrongful act against the plaintiff possessor. The intention to intrude on, or interfere with, land

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that is, in fact, in the possession of the plaintiff is sufficient. Mistake is no defence. The old case of Basely v. Clarkson156is illustrative. The defendant was held liable in trespass to land for innocently mowing the plaintiff’s grass in the belief that it was his own.

As noted above, trespass to land, like other torts of trespass, is actionable without proof of damage. Every unauthorized intrusion onto the plaintiff’s land, no matter how trivial or fleeting, is actionable.

The defendant’s interference with the land must be physical. There is some unevenness in the cases as to what is and what is not a physical intrusion but the requirement excludes smog, chemical fumes, smoke, noise, odour, and probably vibrations. This is another requirement that hampers the tort of trespass to land from dealing with some kinds of environmental pollution. The tort of nuisance may provide a remedy.

Trespass to land does not protect title to, or ownership of, land. It protects actual possession of land. Possession is a difficult and fluid concept of property law. It is based on the idea of occupation and control of land coupled with the intention to exclude other persons. The possessor is one who exercises exclusive occupation of land, such as an owner in occupation of his land or a tenant occupying under a lease. An owner of leased property cannot as a general rule sue in trespass because he has surrendered his possession of the land to the tenant for the term of the lease. A person who only has a licence to be on the property, such as a live-in nanny, a guest in a hotel room, and the holder of season’s tickets to a seat at the theatre, does not have sufficient possession to exercise trespassory remedies. The emphasis on possession rather than ownership derives from the early function of trespass to land to minimize violence by protecting the person in actual possession of the land against forcible intrusion or eviction. So strong was that policy that even a person in wrongful possession of land has the protection of the remedies for trespass to land against all intruders other than an owner who enters on the strength of his right to immediate possession. In technical language, the defendant may not raise a jus tertii (a right in a third person) in defence to an action for trespass to land.

An owner who is out of possession but who has a right to immediate possession has a number of remedies that are loosely allied to the trespass action. First, the owner may, on the strength of his title, bring an action for the recovery of land. This was formerly known as an action of ejectment. Second, if the owner can make a peaceable entry onto the land, a request may be made of the person in wrongful possession to leave and, if there is no compliance with that request, reasonable

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