No trespassers allowed.

• Author: Thind, Samina
• Position: Feature: Real Estate Law

The act of trespassing is often conceptualized as one person setting foot on another person's land without their consent. "Get off my property, you're TRESPASSING!" is a common phrase landowners employ when faced with uninvited guests.

At law, the term "trespass" encompasses much more than individuals creeping onto their neighbour's property without permission. In fact, a landowner's right to be free from intrusions (be it people or objects) extends to both the air above and the ground below their land. This legal principle stems from the latin maxim, cuius est solum eius est usque ad coelum et ad inferos, which roughly translated means: for whoever owns the soil, it is theirs up to heaven and down to hell. What is the concept of trespass beneath land, and a landowner's recourse when faced with such an event?

Generally speaking, trespass to land occurs when there is an unjustifiable intrusion by one person upon another person's land. Trespass also occurs when something is placed on (or in) land that is owned by another. The law's rationale is that a landowner is entitled to freedom from permanent structures which in any way impinge upon the actual or potential use and enjoyment of his/her land. Should such a scenario occur, the law provides that a landowner has a right of action in trespass.

A landowner's right to be free from intrusions extends to the ground beneath an owner's land. In Philips v. California Standard Co., 31 W.W.R. 331, the Alberta Court of Queen's Bench confirmed that:

In general, he who owns or possesses the surface of land owns or possesses all the underlying strata also. Any entry beneath the surface, therefore, at whatever depth, is an actionable trespass. This principle is best explained by way of example. In Vetro v. Strata Plan VR2546, 2008 BCPC 275, the plaintiff landowner sued the defendant condominium developer because rods, rebars and concrete boulders were found protruding into his land from the neighbouring condominium complex. Upon discovery, the plaintiff promptly had the rods, rebars and concrete boulders removed. He brought an action in trespass and sought damages for the costs of removing the items and for pain and suffering.

The Court found that the continued...