trespass

• define

  • unlawful interference with anothers land
• four elements

  • direct interference
  • voluntary interference
  • no need for awareness of trespass
  • no need for claimant to be harmed or experience loss
• direct interference

  • e.g physical entry, throwing something onto land, or remaining on land when right to be there withdrawn
  • southport corporation v esso petroleum
• voluntary interference

  • has to voluntarily enter the land
  • e.g stone v smith
• awareness of trespassing is not needed

  • innocent trespass is still a trespass
  • mistake is not a defence
  • conway v george wimpey and co
• no need for claimant to experience harm or loss

  • actionable per se
  • no need for any damage or loss
• trespass above or below land

  • "who owns the land owns it to the heavens and down to hell"
  • star energy v bocardo
• trespass in airspace

  • balance rights of landowner to enjoy use of his land against rights of general public to take advantage of airspace
  • bernstein v skyviews and general ltd
• trespass below the surface of the land

  • 300 metres or below can be exploited for petroleum or deep geothermal energy without liability for trespass
• trespass ab initio

  • "from the beginning"
  • entered land with authority given by law
  • e.g the six carpenters
• defences

  • legal authority e.g countryside and rights of way act 2000
  • license including contractual licence e.g express or implied consent
  • necessity = private = protect own property against threat of harm and public = protect wider public against harm
• remedies

  • damages and injunctions
  • orders for possession
  • self-help (abatement)