Land

Nature of Trespass Trespass must be direct. It is constituted by direct action against land. Throwing an object on to land constitutes trespass. In contrast, permitting the growth of branches and roots over the boundary line is regarded as indirect, and therefore not trespass.  Such incursions may be treated as nuisances. A person may commit a trespass by causing an object to enter the land of another.  The slightest touching or infringement onto a property is enough. Putting or setting something in place, that will enter on the land by the lapse of time, would constitute trespass.  Similarly, chasing animals onto land constitutes trespass. Trespasses may be claimed without proof of damage.  However, a technical trespass may merit nominal damages only. Actual loss must be shown in order for any significant level of damages by way of compensation to be granted. A trespass may be continuing, if the incursion continues. If the wrongdoer offers to remedy the trespass, but consent to enter is refused, it is likely that continuing liability will cease.… Read the rest

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Nature of Trespass Trespass covers personal entry onto land and causing anything directly to enter into or come in contact with the land, without consent or other adequate justification. The consequences of trespass may vary considerably. On the one end of the spectrum are trespasses involving usurpation of the true owner in possession, destruction and demolition of buildings on the land. On the other end are technical trespasses, involving the slightest unintentional crossing of the boundary. Any entry onto the property of another is a trespass. The claim can be made by any person with lawful rights of occupation of land. This may be the freehold holder,  but may equally be a short-term tenant or licensee. This slightest entry on land without justification, would be a trespass. It is also a trespass to cause an object to pass the boundary of another person’s land.  It is enough to touch or hit the boundary.… Read the rest

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Defences  to Trespass There are various defences to the various types of trespass. Consent Consent is a defence to trespass. Entry onto land should be within the terms of the consent. An entry on land in breach of consent which may cause the person, the trespasser to be deemed trespasser from the moment of entry. Questions may arise as to the terms of consent. Consent may be limited to part of the premises, to a particular type of use etc. A person may become a trespasser by exceeding authority, such as by doing things which are outside the scope of the consent. Consent must not be obtained lawfully. It must not be obtained by duress or by fraud. The person giving consent must have the capacity to understand the matter consented to and its consequences. If a person is deceived as to the nature of the act concerned, then the apparent consent may be invalidated.… Read the rest

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Rylands v Fletcher  / Strict Liability The case of Rylands v Fletcher involved two adjacent coal mining operators.  The defendant constructed a reservoir to supply water to his mill.  His contractors failed to discover an underground shaft which connected to the plaintiff’s mine.  The water broke from the reservoir and flooded the mine. The defendant was not negligent. His contractors may have been, but he was not responsible for them. Trespass could not be maintained.  No nuisance was involved because it was a single escape. At that time the liability of the independent contractor could not be established. The House of Lords formulated what has come to be called the “rule  in Rylands v Fletcher”. It applies to the “non-natural” use of land.  Where something which is not natural is accumulated on land,  which is  liable to cause damage if it escapes, the defendant is strictly liable, (i.e. liable irrespective of fault) for the damage that ensues from escape.… Read the rest

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No  Fault A key feature of a claim in nuisance is that it is not necessary to prove that the respondent ’s behaviour was deliberate or even negligent.  Once the action itself constitutes a nuisance and is an unreasonable interference with the claimant’s land, this of itself creates liability.  In effect, the fault lies in the nuisance itself. Where a tree over-hangs a boundary and damage arises from a hidden fault which is not reasonably discoverable, then there is no liability for nuisance.  The degree of vigilance required, depends on the circumstances, including the extent of the risk, which may depend on the nature of the location.  Trees overhanging the boundary in an agricultural area require a lesser standard of vigilance than trees overhanging a boundary in a populated suburban setting. Circumstances and environment may change over time and impose a greater care.  Therefore, liability has been imposed for damage caused to vehicles of a height, which would not have used the adjoining highway roadway, in an earlier period.… Read the rest

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Law of Nuisance The law of private nuisance compensates for or prevents the unreasonable interference disturbance or annoyance of a person in his occupation of land. It protects the interest of the landowner and occupier in the quiet and peaceful enjoyment of the property. The law of public nuisance protects rights enjoyed by the public, such as the right to exercise a public right of way. A person may be liable for nuisance without any proof of negligence. It may be easier to prove a claim for nuisance than for negligence. Public Nuisance A public nuisance is an interference with the rights of the public or a group of the public. It relates to the interference with rights held in common. For example, the blocking of a highway or interference with a public right of way may be a public nuisance. If a member of the public trips and falls on something that comprises a public nuisance, he may be entitled to seek compensation on the basis of both nuisance and negligence.… Read the rest

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