Trespass to Land: The Essentials, the Forms It Takes, Airspace and Subsoil, and Trespass ab initio

Trespass to land is any unjustified direct interference with land in the possession of another. It protects possession, as nuisance protects use and enjoyment, and the two are told apart by directness: walking onto land is trespass, letting smoke drift over it is nuisance. The tort is actionable per se, so no damage need be proved and nominal damages follow the bare entry. Mistake is no defence: what must be intended is the act of entry, not the trespass.

The three essentials, the forms trespass takes, and the position as to airspace, subsoil and trespass ab initio

1. The Three Essentials

2. Directness, and Why It Matters

• Walking onto land is a trespass; letting smoke drift over it is a nuisance. The distinction is not one of degree of harm but of the manner in which the interference came about.
• Throwing a stone onto land is trespass; allowing tree roots to spread beneath it is nuisance. In the first case the defendant's act put the object there; in the second the encroachment was gradual and consequential.
• The consequence of the distinction is procedural and substantial. Trespass is actionable per se and nuisance is not, so the plaintiff who can frame his complaint as trespass need prove no damage at all.
• A single act may found both. Where a defendant enters to install a pipe and the pipe then discharges water, the entry is trespass and the discharge may be nuisance.

3. Possession, Not Ownership

• Trespass is a wrong to possession. The plaintiff must have been in possession at the date of the trespass, whether actual or constructive.
• A tenant in possession sues, and the landlord ordinarily cannot, though a landlord may sue for an injury of a permanent character affecting his reversion.
• Even a person in wrongful possession may sue a stranger, since possession is good against all the world except the person with a better title. A trespasser in possession may therefore sue a later trespasser.
• A servant or licensee in occupation has no possession of his own and cannot sue, though his employer or licensor can.
• Possession of the surface carries with it possession of the subsoil and of the airspace to the height necessary for ordinary use, which is examined below.
• Trespass by relation allows a person entitled to immediate possession who afterwards enters to sue for trespasses committed between the accrual of his right and his entry, his possession being treated as having related back.

4. Intention and Mistake

• The act of entry must be voluntary and intentional. A person carried onto the land against his will, or thrown onto it, does not commit a trespass, though the person who put him there may.
• An intention to trespass is not required. The defendant need not know that the land belongs to another or that he has no right to be there.
• So mistake is no defence. A man who walks onto the wrong plot in the honest and even reasonable belief that it is his own is a trespasser, and a surveyor who marks a boundary wrongly does not save him.
• Negligent entry is also a trespass, though the modern tendency is to treat a purely negligent entry as a matter for the law of negligence.

5. The Forms Trespass Takes

6. Continuing Trespass

• A thing wrongfully left on another's land constitutes a fresh trespass every day that it remains there.
• So a new cause of action arises daily, and the period of limitation runs afresh from each day, with the result that the claim does not become time barred so long as the trespass continues.
• Successive actions therefore lie, and damages recovered in one suit do not bar a later suit for the continuance.
• The distinction is from a trespass that causes permanent damage and is then over, as where a wall is demolished. There the cause of action arises once, and limitation runs from that date, however long the damage lasts.
• Encroachment by a structure is by its nature a continuing trespass, which is why the usual relief is a mandatory injunction to remove it rather than damages once and for all.

7. Airspace

• In India, section 8 of the Aircraft Act, 1934 and the rules made under it govern the position of aircraft, and an aircraft flying at a reasonable height in accordance with the rules commits no trespass.
• The practical significance of the airspace cases today is different from what it was. Cranes swinging over a neighbouring site, scaffolding, projecting balconies and cables strung across are the ordinary disputes, and the operation of unmanned aircraft raises the same question in a new form.

8. Trespass ab initio

• Where a person enters land under an authority given by law and then abuses that authority, he is treated as a trespasser from the beginning, and not merely from the moment of the abuse.
• The doctrine is laid down in the Six Carpenters' Case (1610) 8 Co Rep 146a, and its limits were fixed there.
• It applies only to an authority given by law, such as a power of entry conferred by statute or by the common law, and not to an authority given by a party, such as a licence from the occupier. In the latter case the entrant becomes a trespasser only from the time of the abuse.
• It requires a misfeasance and not a mere nonfeasance. In the Six Carpenters' Case itself the carpenters entered an inn lawfully, ordered wine and refused to pay. The refusal was held to be a nonfeasance, and they were not trespassers ab initio.
• Its practical effect was to make the whole entry unlawful, so that everything done from the moment of entry became actionable, which was significant when the legality of a search or seizure turned on it.
• The doctrine is now largely obsolete. It has been criticised as illogical, since later conduct cannot alter the character of an earlier act, and modern courts prefer to ask simply whether the particular act complained of was authorised.

9. The Position Stated Shortly

1. Trespass to land is any unjustified direct interference with land in the possession of another.

2. It is actionable per se, so no damage need be proved and nominal damages follow the bare entry.

3. Directness distinguishes it from nuisance: walking on is trespass, letting smoke drift over is nuisance.

4. Possession and not ownership is protected, and even a person in wrongful possession may sue a stranger.

5. The act of entry must be intentional, but an intention to trespass is not required, so mistake is no defence.

6. The forms are entry, remaining after permission ends, placing things on the land, and intrusion into the airspace or the subsoil.

7. A thing left on the land is a fresh trespass every day, so a new cause of action arises daily and limitation runs anew.

8. Kelsen v. Imperial Tobacco holds that a sign projecting into the airspace is a trespass, and a mandatory injunction follows.

9. Bernstein v. Skyviews holds that rights in airspace extend only to such height as is necessary for the ordinary use and enjoyment of the land.

10. Trespass ab initio makes a person who abuses an authority given by law a trespasser from the beginning, requires a misfeasance and not a nonfeasance, and is now largely obsolete.