Introduction
The tort of trespass to land is one of the oldest actions in English law, designed to protect a person's right to the possession of their land without unjustified interference. It forms part of a group of torts, alongside trespass to the person and trespass to goods, that protect fundamental interests against direct and intentional wrongdoing. Unlike torts such as negligence, trespass to land is actionable per se, which means that a claimant does not need to prove that they have suffered any actual damage or loss to bring a claim (Horsey and Rackley, 2021). The primary purpose of the tort is not to compensate for harm, but to vindicate the claimant's right to exclusive possession. This essay will explain the principles of the tort of trespass to land under the law of England and Wales. It will first define the tort and its key elements, before moving on to consider the available defences and the remedies that a successful claimant may be granted.
The Elements of Trespass to Land
For a claim in trespass to land to be successful, the claimant must establish three key elements: that there was a direct and physical interference, that this interference was with land in the claimant's possession, and that the defendant's act of interference was intentional.
Direct and Physical Interference
The interference with the land must be direct and immediate, rather than indirect or consequential. An act is direct if it is the immediate result of the defendant's actions. For example, walking onto the claimant's land is a direct interference. By contrast, if a defendant's actions cause something to happen later which then affects the claimant's land, this is likely to be consequential and would be more appropriately dealt with under the tort of nuisance or negligence. The classic case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 illustrates this distinction. In that case, oil deliberately discharged from a ship to save it from breaking up was carried by the tide onto the claimant's foreshore. The House of Lords held that this did not amount to trespass because the interference was not direct; the tide was an intervening force. Lord Denning noted that the "trespass must be a physical act done by him directly on to the plaintiff's land" (at 244). Conversely, in Gregory v Piper (1829) 9 B & C 591, a defendant who left rubbish on his own land, which then rolled onto the claimant's land, was held liable for trespass because the interference was a natural and probable consequence of his act, and therefore considered direct.
The Meaning of ‘Land’
The tort protects interference with 'land'. The legal definition of land is wider than the everyday meaning and is traditionally summed up by the Latin maxim cuius est solum, eius est usque ad coelum et ad inferos (he who owns the land owns everything up to the sky and down to the centre of the earth). However, case law has shown that this principle has significant limitations in the modern world.
Regarding the airspace above the land, the courts have sought to balance the landowner's rights with the needs of the public, particularly in relation to aviation. In Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479, the defendant flew over the claimant's country house to take an aerial photograph. The court rejected the claim for trespass, holding that a landowner's rights in the airspace only extend to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. As the aircraft did not interfere with the claimant's use of his land, there was no trespass.
Regarding the subsoil, the courts have taken a more absolutist approach. In Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, the Supreme Court held that drilling for oil at a depth of between 800 and 2,800 feet below the claimant's land, without their permission, constituted a trespass. The court dismissed the argument that the drilling was too deep to affect the claimant, confirming that ownership of the subsoil extends downwards unless displaced by legislation or conveyance. However, it should be noted that damages awarded were modest, reflecting the fact that the trespass did not interfere with the claimant's use of the land.
The Defendant’s Intention
The trespassory act must be intentional. This does not mean that the defendant must intend to commit a trespass or even know that they are on another's land. Instead, the defendant must have intended to make the physical act of entry, and the entry must have been voluntary. For instance, in Smith v Stone (1647) Sty 65, the defendant was carried onto the claimant's land by force against his will. The court held that he was not liable in trespass, as his act of entry was not voluntary. The person who carried him onto the land would have been the trespasser.
The intention relates to the act of placing oneself on the land. A mistaken belief that the land is yours, or that you have permission to be there, is no defence. The key point is that the defendant's actions must be voluntary. The principle has been extended to cover situations where a defendant is negligent as to the entry. In League Against Cruel Sports v Scott [1986] QB 240, the court held that a hunt master could be liable in trespass if he either intended for the hounds to enter the claimant's land or was negligent in preventing them from doing so.
Defences
A defendant accused of trespass may be able to rely on several defences. The most common are licence, justification by law, and necessity.
A licence is simply permission given by the possessor of the land to a person to enter the land. This permission may be express, such as being invited to a party, or implied. For example, in Robson v Hallett [1967] 2 QB 939, it was held that there is an implied licence for any member of the public to walk up the path or driveway to the front door of a dwelling to inquire whether they may be admitted. However, a licence can be revoked at any time by the landowner. Once revoked, the person who was formerly a licensee must leave the land within a reasonable period; if they fail to do so, they will become a trespasser (Winfield and Jolowicz, 2020).
Justification by law provides a defence where a person has a legal right to enter land. The most common examples involve officials acting under statutory authority. For instance, section 17 of the Police and Criminal Evidence Act 1984 gives the police power to enter premises without a warrant for specific purposes, such as to make an arrest.
Finally, the defence of necessity may be available in rare circumstances where the trespass was committed to prevent a greater harm. This defence is narrowly construed by the courts. In Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, police officers fired a CS gas canister into the claimant's shop to flush out a dangerous psychopath, causing a fire. The court held that while the police were liable in negligence, the entry itself was justified by the defence of necessity.
Remedies
A claimant who proves that a trespass to their land has occurred is entitled to a remedy. As the tort is actionable per se, a claimant can succeed even without proof of any loss. In such cases, they will be awarded nominal damages to vindicate their legal right. If the trespass has caused actual financial loss, such as damage to property or loss of profit, the claimant will be entitled to compensatory damages to restore them to the position they were in before the tort occurred.
In many cases, however, a more effective remedy is an injunction. An injunction is a court order that either prohibits a defendant from continuing a trespass (a prohibitory injunction) or, more rarely, orders them to undo the effects of a trespass (a mandatory injunction). Injunctions are a discretionary remedy but are commonly granted to prevent ongoing or repeated interferences with land, as was the case in League Against Cruel Sports v Scott.
Conclusion
In summary, the tort of trespass to land provides a powerful legal tool for the protection of a person’s right to the exclusive possession of their land. Its strength lies in its simplicity and the fact that it is actionable without proof of damage. The claimant need only show a direct, intentional, and physical interference with land that is in their possession. While the traditional definition of 'land' has been modified by the courts to accommodate the realities of modern life, particularly in relation to airspace, the core principles of the tort remain firmly established. Through the availability of defences such as licence and justification by law, the law balances the landowner's rights against legitimate reasons for entry. Ultimately, with remedies including damages and injunctions, trespass to land continues to be a fundamental and effective means of vindicating property rights in English law.
References
Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35.
Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479.
Entick v Carrington (1765) 19 St Tr 1030.
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218.
Gregory v Piper (1829) 9 B & C 591.
Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford University Press.
League Against Cruel Sports v Scott [1986] QB 240.
Police and Criminal Evidence Act 1984.
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.
Robson v Hallett [1967] 2 QB 939.
Smith v Stone (1647) Sty 65.
Winfield and Jolowicz (2020) Winfield and Jolowicz on Tort. 20th edn. Sweet & Maxwell.
