Trespass Issues
Overview
Any entry onto the property of another is a trespass. Trespass covers personal entry onto land and causing something directly to enter into or come in contact with land, without consent or other adequate justification.
The claim can be made by any person with lawful rights of occupation of land. This may be the freeholder but may equally be a short-term tenant or licensee. This slightest entry on land without justification, would be a trespass.
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.
The Constitution protects the inviolability of a citizen’s dwelling house. Trespass law gives effect to this protection.
A person can become a trespasser if he stays on land after the consent to enter has ceased. There may be a continuing trespass if a person refuses to leave or remove the offending item.
There is a right to use reasonable force to remove a trespasser.
Any Incursion
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. This would include throwing stones onto land or causing animals to run onto land.
It is trespassing to place something directly on the land. This may be a natural or artificial thing (or chattel). I It is a trespass to directly cause another person to intrude on the land, such as by chasing him or driving him onto the land.
The action must be direct and intentional in the sense of being voluntary and conscious. An overgrowing tree crossing the boundary would not constitute trespass.
If a physical intrusion has occurred, the onus is on the defendant to prove that his actions were neither intentional, reckless or negligent. If he did not act voluntarily, such as when a person has been pushed or thrown into the property or where he has sleepwalked, it would appear that he does not commit any trespass.
High or Low
Land includes the airspace above and the subsoil below ground. Entry or intrusion into land above or below the ground will constitute a trespass.
At one time, ownership of land was presumed to go downward and upwards indefinitely. However, the modern view is that land rights are limited to the depth or height reasonably necessary for the ordinary use and enjoyment of land.
Technically, an intrusion into airspace, at least up to the height necessary for the ordinary use and enjoyment of the land and structures on it, constitutes trespass. There is no defined height at which property rights cease.
Flying a kite or a drone over property is likely to constitute trespass. Overflight of aeroplanes will usually be at a height greatly in excess of that necessary for the ordinary use and enjoyment of the property.
There is a statutory exemption for overflying aircraft. Air Transport legislation provides that no action shall exist for trespass or nuisance by reason of the overflight of aircraft at a height which is in accordance with the ordinary incidence of flight.
Actionable in Itself
A feature of trespass is that damage need not be proved. It is said to be actionable per se (in itself).
There is a right to sue for trespass, even though no damage or loss has actually been suffered. It leads to libility in itself.
No actual financial loss needs to be shown. However, the award in the case of a technical trespass may be nominal, and it may uneconomic to litigate.
Landlords, Tenants & Licensees
Trespass is an interference with the possession of land. It is the person entitled to the exclusive possession of the land, who is entitled to bring the action. A person who enters land as a so-called licensee or a guest, would not generally have sufficient control or possession to sue a third party for trespass.
The right to occupation and the right to bring a claim for trespass lies with the tenant. Where a trespasser causes actual damage to property, the landlord may claim compensation for the loss or devaluation of his future expectant interest, after the termination of the lease.
A landlord may not generally sue during the currency of a lease. A tenant may be able to sue a landlord who attempts to enter land in excess of his rights under his lease.
Where permanent damage is done to the land, persons who have an interest in the land but are not in possession may recover compensation for damage done to their interest. For example, a landlord may sue in trespass for damages for permanent damage done to the land. This may be in addition to the tenant’s claim for his shorter-term loss.
Protects Possession
Trespass is primarily interference with possession rather than with ownership. Accordingly, the person with the lowest estate or interest in the property, which of necessity carries exclusive possession, may maintain a trespass action.
What constitutes actual possession is a question of fact in the circumstances. It requires physical control and intention. See generally the sections on property law as to what constitutes possession.
A tenant may sue and maintain an action for trespass, against any person, including his landlord, relative to whom he has a right to immediate exclusive possession. In contrast, a licence holder does not have a right of exclusive possession and may not maintain a trespass claim. A person entitled to an easement may not maintain trespass but has a separate nuisance-type action for interference with those rights.
Relativity of Title
A person who is in possession has better rights against all others except those who prove a better title. Accordingly, even a squatter may maintain trespass against third parties but not against the “true owner” with a better title to the land. The true owner may maintain an action for trespass against the owner.
A squatter may claim trespass even though he does not have title to the property. The trespasser may not invoke the rights of the true owner against the squatter. This relativity of ownership and possession is a fundamental principle of land law and trespass.
Where a person with a better title recovers or enters possession, he is deemed to have obtained possession retrospectively from the moment when his right arose. This is trespass by relation. In this case, that person may take action for trespass in respect of the period while he was out of physical possession.
Following the above principle, it is not a defence to trespass to impugn the title of the person in possession on the basis of a third party’s better title. The person in possession maintains all the rights of the “true owner”, including the right to take proceedings for possession against all parties except a person with a better title.
There is no reduction of damages where the claimant is a squatter. However, the squatter may be obliged to account for damages recovered to a person with a better title if that third party later takes action against him.
Picketing
Trespass to the sub-soil may arise in picketing cases. Injunctions and court orders restraining picketing are usually based on misuse of the general rights of the public to pass and re-pass over the subsoil, notionally owned by the adjoining owner. Excessive picketing, gathering in numbers and standing outside the premises is likely to be in excess of the permitted use of the highway relative to the notional dedication by the owner.
If a person uses the highway to watch, observe and interfere with the owner in his use of the adjoining land, it is likely to constitute trespass to the subsoil. Picketing in this context may be lawful subject to compliance with the terms and conditions of the Industrial Relations Act.
Arguments have been made that picketing and attending at or near premises for the purpose of peaceful communication raises issues of free speech. If there is a complete prohibition on access for the purpose of communication, it may infringe on freedoms protected by the European Convention on Human Rights.
This protection is unlikely to be breached in the vast majority of cases. The Industrial Relations Act allows attendance at or near the approaches to places where the picketer works or where his employer carries on business for the purposes permitted.
Exceeding the Terms of Consent
A person may become a trespasser by exceeding the terms of the consent on which he has entered premises. He may exceed the terms of the consent, by going into parts of the premises which are outside the scope of the express or implied consent of the landowner. The person may exceed consent by doing things in relation to the land which exceed the terms of the consent.
In a famous involving the finding of the Derrynaflan Chalice, the finders, by digging ground near a national monument, were outside the terms of the implied consent on which they entered the land. Their entry was deemed to constitute trespass ab initio, as the finders entered under a false basis, intending to exceed the terms of the consent so that they were trespassers from the outset and not just from the point at which they exceeded the consent. Similar considerations apply in respect of defective warrants or police officers or public officials who act without lawful authority.
Retrospectively a Trespasser
A person who enters land with the intention of committing a crime is a trespasser, as and from the moment of entry. In the case of a dwelling house, the crime of burglary may be committed when a person enters a dwelling house intending to steal or do certain other criminal acts.
Traditionally, the principle of trespasser ab initio (from the outset) applied in the case of entry in excess of the public officer’s powers, such as without a warrant where required, in excess of a common law power or in breach of the terms of a warrant. At common law, the State officer was deemed a trespasser as and from the moment of entry and was deemed retrospectively to be a trespasser as and from the moment of entry.
The principle of trespasser ab initio is ancient, but it is well established and plays a useful function. A person may be a trespasser when he enters a property with the intention to commit a crime or steal. Where a person enters the dwelling house with such intention, he may be guilty of burglary.
The Irish courts have expanded the principle of trespass ab initio to private cases. In the above case, the Supreme Court held that where the finders entered the land with consent but intended to and did exceed their authority by excavating, they were trespassers ab initio (retrospectively).
Direct v Indirect Interference
It is an ancient and fundamental aspect of trespass is that its interference with the claimant’s land is direct, rather than indirect or consequential. It must have an immediate and direct effect. It is consequential where there is an intervening factor. Accordingly, trespass is unlikely to cover inducing or persuading a person to enter land or to do things which induce him to go on the land, as it lacks the requisite directness.
It may be difficult to draw the line between direct and indirect/consequential injury or damage, for the purpose of trespass. The distinction between allowing or causing water or sewage to flow onto land or allowing it to accumulate such that it escapes and goes onto land may be fine, in marginal cases.
The spreading of roots and tree branches has been regarded as indirect or consequential, even if the person plants at the boundary and stands by and does nothing to stop the intrusion. In contrast, it may be trespass to permit the growth of a creeper onto another’s wall or lean a ladder against it.
The intrusion of smells, noise and fumes is not regarded as trespass but are subject to the law of nuisance.
Continuing Liability
Some trespasses are continuing, whereas others are one-off in nature. There is a continuing trespass where the person or thing remains on the land and is not removed. Where the trespass causes damage, he is liable once only in respect of that damage, even though it endures in some sense.
In the case of continuing trespass, more than one action may be taken. Further action may be taken if the trespass is not remedied after the first action. The distinction can be difficult to draw in some circumstances. If the claimant refuses entry in order to remedy a continuing trespass, he may be precluded from taking further action.
The classic distinction is between the construction of the wall, constituting a continuing trespass and the cutting down of a tree, which is a single act of trespass. In the latter case, the law does not require reinstatement. Although technically a tree may be replanted, it is not the same tree.
It appears that the distinction is between that which is continuing and that which can be removed and undone and that which constitutes a single act of damage, which although it might be remedied cannot be undone. A continuing trespass involves a continuing remediable intrusion as opposed to a single action, which although can be remedied, has caused damage, principally on that initial one-off occasion. Compensation may be granted, but reinstatement is not required.
Injunction
A landowner is presumptively entitled to an injunction to restrain a trespass, whether in a final action or pre-trial stage. A person need not act reasonably in withholding consent, for example, to the running of pipes to his or her land.
This Court is satisfied that where there was a deliberate and continuing trespass without the plaintiff’s consent … it is appropriate to grant an injunction if the compulsory purchase process does not result in final orders being made and compensation paid. However, the Court must consider the nature and timing of such injunction by reference to the circumstances as they exist as of this date. In the Wollerton & Wilson Ltd. v. Richard Costain case, Stamp J. identified that in cases where in principle a plaintiff is entitled to the injunction which they claim, that it was still necessary to consider the question whether there were circumstances such that the operation of the injunction should be postponed for an appropriate period. That approach is all the more relevant in this case where there is a process in being which could result in there being a legal entitlement for the pipes to remain in situ. To order the removal of such pipes pending the completion of that process would be oppressive.
McKeever v Hay [2008] I.E.H.C. 145, Feeney J.
“This Court is satisfied that where there was a deliberate and continuing trespass without the plaintiff’s consent … it is appropriate to grant an injunction if the compulsory purchase process does not result in final orders being made and compensation paid. However, the Court must consider the nature and timing of such injunction by reference to the circumstances as they exist as of this date. In the Wollerton & Wilson Ltd. v. Richard Costain case, Stamp J. identified that in cases where in principle a plaintiff is entitled to the injunction which they claim, that it was still necessary to consider the question whether there were circumstances such that the operation of the injunction should be postponed for an appropriate period. That approach is all the more relevant in this case where there is a process in being which could result in there being a legal entitlement for the pipes to remain in situ. To order the removal of such pipes pending the completion of that process would be oppressive.”
Proving Trespass
In Presho v Doohan [2009] IEHC 619, it was held that res ipsa loquitur may apply in respect of trespass to land. A dilapidated house on Tory Island disappeared over a period of time while the plaintiff was living elsewhere. The sole owner of a JCB and the island and hotel ciders house was sued.The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove (save there are admissions) all the necessary ingredients of the tort and it is not for the defendant to disprove anything. Such exceptions as has been allowed to that general rule seem to be confined to cases where a particular element of the tort lies, or is deemed to lie, pre-eminently within the defendant’s knowledge, in which case the onus of proof as to that matter passes to the defendant. Thus, in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it occurred without want of due care on his part. The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to lie in the fact that it would be palpably unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof”
It is not the case that res ipsa loquitur may be invoked only where the evidence is more accessible to the defendant. Of course, proof of the elements of a case based on res ipsa loquitur frequently shows superior or exclusive knowledge on the part of the defendant as to how the accident occurred: of the nature of things, those in control of the instrumentality causing the injury are generally more likely to have such knowledge than their victims. But the res ipsa loquitur doctrine is neither reducible to, nor dependent on, this element … The whole point of the doctrine is to permit the making of an inferential conclusion that the defendant’s negligent conduct caused the plaintiff’s injury from the fact that (a) the thing causing the injury was under the defendant’s control and (b) accidents such as the one befalling the plaintiff do not ordinarily happen if those in control exercise due care”
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019