TRESPASS, TRESPASS TO PROPERTY, TRESPASS TO LAND,Trespass to persons. LLb Part I Paper VI

TRESPASS
By Professor Bob Hughes

In this unit we introduce the action in trespass. After examining the basic principle of trespass, we look particularly at trespass to property. In unit 3 we will examine two of the well-known forms of trespass to the person, namely assault and battery.

Learning objectives

When you have completed this unit, you should be able to:

• explain the basic principles of trespass
• list the various types of trespass.
• differentiate between the two types of trespass to property:
• trespass to land and
• trespass to other types of property.

Contents

Basic principles of trespass *
Elements of trespass *
Types of trespass *
Trespass to property *
Trespass to land *
Trespass to other types of property *
Key terms *
Hints for selected study tasks *
Review questions *

 BASIC PRINCIPLES OF TRESPASS

Trespass is similar to many criminal offences that currently exist. Indeed, as we have already pointed out, there are areas of tort where civil wrongs and criminal wrongs overlap. Kidnapping and abduction are conceptually very close to the torts of false imprisonment. Defamation (i.e. making unfair statements against a person’s character) is a tort that once had a criminal version as well as a civil version.

Trespass is certainly one of these areas of overlap. Many things that were originally called trespass are now known by other names—even in the area of torts itself. We can also find the link of trespass to:

• theft, larceny, burglary and robbery, which are all criminal forms of what was originally called trespass to property; and
• Assault, or assault and battery, rape and so on, which are forms of trespass to the person.

Elements of trespass

Older elements of trespass

The older elements of trespass, as distinct from an action on the case, were as follows:

1. The action involved must be direct in an appropriate sense. The action cannot be regarded as some sort of consequential interference with the defendant’s person or property.

This requirement of directness has been stretched at times. For example, in Scott v Shepherd (1773) 2 Wm B1 892, the defendant threw a lighted firework into a crowd at a market. One person caught it and quickly passed it on to someone else (entirely understandable!) and that person passed it on, and so on until it blew up in the plaintiff’s face. The issue was whether the defendant’s original action was a trespass—in other words, was it direct enough? The court said yes in that case. Others might well have said no.

In general, the courts seem to take the view that something is direct in the appropriate sense if the act and the consequences can be so closely related that they are considered a part of the defendant’s act. Obviously there will be scope for argument about this.

2. As we have said before, a trespass gives rise to an action without proof of injury. If you enter my land without my consent or other legal authority, then you are a trespasser and I can sue you for trespass. I do not have to prove that you have caused any damage to my land or any loss to me at all. We usually describe this situation by saying that trespass is actionable per se (meaning "in itself").

3. Originally, no proof of any fault was required in relation to the action of trespass.

However, as the law evolved, the distinction became rather confused and indirect elements were introduced into some types of trespass action. For example, we can speak of trespass on the case as a particular sort of action that involves a consequential type of interference, rather than a direct one. Trespass on the case is the technical legal name for the particular type of action that evolved here. The courts allowed this because the defendant’s interference was intentional rather than unintentional.

To further complicate matters, in the 19^th century the courts allowed elements of fault in the form of defences to be introduced into actions in trespass. So point 3 was eroded by the creation of new defences such as consent and inevitable accident or necessity.

Requirement of intention

In England, the courts no longer use the concept of directness as the basis for the distinction between trespass and other major types of tortuous action, such as negligence. They now base the primary distinction on whether the act was intended.

• If the act was intended, then the action should be in trespass and trespass alone. It does not matter whether the act involved is direct or indirect, the action must be in trespass.
• If the act was unintentional, then the action should be in negligence. Indeed, the plaintiff has the obligation in an action in trespass to prove that the action was intentional on the part of the defendant.

Other jurisdictions have not followed this path. Courts, for example in Australia, still maintain that the primary distinction is between torts that are direct and torts which are indirect. However, some courts have indicated that they may be receptive to the English approach.

The real issue in terms of the approach is really: where should the law pin the blame in cases where no injury, damage or loss is involved?

If a case concerns an area that requires injury, damage or loss, other issues arise. Namely:

• should the court be concerned with preventing the direct infliction of harm by focusing on the consequences of some action in these cases? or
• should it be looking at the prevention of the intentional infliction of harm?

It is a difficult question, which you need only think about at this time.

TYPES OF TRESPASS

There are two main types of trespass:

• Trespass to property, which has two subcategories of

-trespass to goods, and 
-trespass to land; and

• Trespass to persons.

TRESPASS TO PROPERTY

By now, you should appreciate that trespass is a form of intentional interference. And, obviously, when we are concerned with trespass to property we are concerned with trespass in relation to something that the law regards as property.

Legal definition of property

Property* is one of those terms which has a common meaning and a legal technical meaning. Maybe if we asked non-legal people to define property, they would say that property is "anything which is mine". That is true enough but then they would find it difficult to say what things they can own and what things they cannot. Perhaps land and other physical things are the most obvious examples of property that they would suggest.

However, there are many different senses of the term, and legal systems recognize many things as property other than physical things. You are not expected to understand these details at this point. Let us just say for the moment that you cannot maintain an action in trespass unless you can establish that it involves some form of interference with a person’s property, in its legal sense.

Kinds of Property

The term property is applied to land (sometimes called real estate) and to goods and chattels (moveable things such as household furniture, motor vehicles, books, jewelers and so on).

Personal property* is a term that applies to any property other than land. It includes:

• things which are physical; and
• Other forms of property (intangible property* is the technical term) such as debts due, moneys in a bank account, shares in a company, copyrights and patent rights.

Any form of personal property can give rise to an action in trespass provided that it is capable of possession. This is a rather complicated issue which we will address in greater depth in LA204.

Let us just say for now that if something is not regarded as property in law (e.g. a corpse), then it cannot be the subject matter of an action in trespass.

TRESPASS TO LAND

Trespass to land is one of the oldest forms of action in English law. Its age demonstrates how much importance is attached to rights to the usage of land in the view of the English legal system and elsewhere. Human beings are often highly territorial, and value their right to occupy their land peacefully and without the intrusion of others. The name of the original writ in respect of trespass to land meant "the breaking of the close". "Close" here meant enclosed land.

In the area of trespass to land, you should note that the law is mainly concerned with the protection of a person’s right to possession* of land. It is not so much concerned with the protection of ownership of the land. Thus the possessor*, rather than the owner, of the land has the primary right to sue in trespass (with some complications as regards other torts).

Ownership and possession

Ownership and possession are not the same

There is a considerable difference in law between questions of ownership and questions of possession. So there is certainly significance in the saying that "possession is nine-tenths of the law". However, contrary to a common assumption, the person who takes possession of something does not have an absolute right to it.

You will learn much more about the complicated distinction between ownership and possession when you take property law in the third year. We will consider it in a more simplified form for the present time.

What is ownership?

Ownership normally indicates that a person has:

• the right to possession, or to actual physical control, of the relevant property. Hence it is a right which is superior to possession;
• the right to sell, or give away, the property in question or to leave it to others by will when the owner dies. An owner can carve out lesser interests* in property in favor of others. For example, owners can grant a lease of their property or create a trust over it or mortgage it to the bank as security for a loan; and
• the dominium* (or lordship) over something which is property. It is the highest legal right with respect to private property that is recognized by a legal system. The claims of the State perhaps come first. The claims of the owner come second.

What is possession?

Possession* is the right to have something under your immediate control or use. Persons who are in possession might be able to enjoy their occupation of the land for some time but they will have problems in dealing with the land and creating recognized legal interests in the land. Where ownership is a matter of legal right, possession is a matter of fact.

Rights of ownership normally include the right to possession. However, that right to possession might be lessened by something the owner has done. He or she might have given away rights of possession in the property. Or, as a matter of fact, someone else might simply have assumed possession of the property with or without the owner’s knowledge.

Ownership is always legitimate or "legal". Possession might be either legitimate or illegitimate. But even when it is not legitimately gained, possession can give rise to certain legal rights and protections. Thus even a person who has "stolen" another person’s (the owner’s) property has certain rights, including rights in trespass.

Concept of land

What is land?

The English concept of land includes:

• the surface terrain of the land; and
• the column of air above the surface; and
• the area that is below the surface.

So you can commit a trespass against my airspace. You can also commit a trespass against me by burrowing underneath my land without my consent.

The old legal phrase that expresses this principle is:

cujus est solum ejus est usque ad coelum et ad inferos.

This means "to whom the earth belongs the soil, his it is, even to heaven, and to the middle of the earth". In other words, the land extends upwards to the heavens and downwards as far as the centre of the earth. The vertical column that extends upwards as far as it goes and downwards as far as it goes is my land.

So, trespass to land must concern itself not only with surface rights but also with potential intrusions upon this vertical column. Note that in the modern world, the application of this idea is somewhat restricted by laws which deal with control over airspace, mineral rights and so on. In these areas, the State exercises public rights that have taken over from rights that were once regarded as private.

Basic situations of trespass to land

The following are some basic situations in which there will be a trespass to land. All of these assume that there is possession involved and that the action was intentional. 

If someone comes onto another’s land without the permission of the person who has possession of that land, that is trespass. If that entry is by mistake, then it may be unintentional.

If a person should have permission in order to enter onto the land but the permission is properly revoked, and that person then remains on the land without permission, that is a trespass.

If someone throws some object onto land which is in the possession of another, then that is a trespass.

Leaving the thrown object on the land is also a trespass, just as a person staying on the land without consent is a continuous trespass.

If someone fires a gun and the bullet passes across my land that is a trespass against my land. Firing across my land again is a second trespass.

If my next door neighbor put a ladder up against my house and the foot of the ladder is located on her land, then that is a trespass.

If you erect a sign which hangs above my land, that is a trespass.

If you park a crane in your property but its jib hangs above my land, that is a trespass.

If you bore or mine under my land, that is a trespass against me even though you did not gain entry to the subsoil through the surface of my land.

If your bull has intercourse through the fence with my cow, that is trespass—a special variety called cattle trespass.

A salesperson comes through my front gate. There is a sign on the gate saying "No access to anybody under any circumstances". She has committed a trespass. What about if there was no sign? Would the fact that I have a front gate and a path mean that people have an implied permission of entry? Yes! But if there was no sign and I said "Leave immediately", it would be a trespass for the salesperson to stay.

You invite your friend around for dinner. Over dinner you have an argument with your friend.
You lose your temper, and say, " Get out immediately". 
He says, "I apologize. Please don’t ask me to go".
You say, "You have five seconds to get out".
It would take any fit person at least 30 seconds to run to the front gate. You count down from five and then punch your friend.
In court, you argue that your former friend was a trespasser because he did not leave when you revoked your permission for him to be on the premises. But the revocation of permission has to be reasonable and a person must be able to comply with it in a reasonable time. It is you who are guilty of a trespass here—a trespass to the person, namely battery.

A particular situation of trespass to land may be an isolated incident, or it may be a case where a person remains on land without the consent of the person in possession of it. If the trespass is continuous, there is a separate cause of action in trespass for each day that a person remains on the land without consent.

Action for removal

If someone goes onto land and assumes possession without consent, then the action for removal of that person on the ground of trespass is known as an ejectment* or an action in ejectment. In other words, an ejectment is an action to recover rightful possession of land.

 Trespass to other types of property

The principles of trespass which apply with respect to land can also apply with respect to any form of property which can give rise topossessory rights. Goods or chattels are the obvious example, but bear in mind that a person can also commit trespass with respect to a cheque, a bill of exchange, a debenture note or a share certificate.

Say a person takes a cheque that is written out by you in favour of someone else. You could say that the cheque had been stolen but this would be a criminal law concept. As you will recall many torts are also potential criminal offences. Trespass to personal property is close to the criminal offence of larceny or stealing.

The basic principles of trespass follow the same pattern. But, to complicate matters, there are separate rights of action with respect to:

• trespass to chattels*;
• detinue*; and
• conversion* or trover*.

 Trespass to chattels

Trespass to chattels is usually available with respect to cases where there has been no substantial damage or injury to the property concerned. Trespass to chattels follows the same pattern as trespass to land in most vital respects. The person who is in actual possession prior to the trespass is the person who can sue for trespass to chattels. Again, the taking of somebody's household furniture without the person’s consent and without any other legal justification for removal of it constitutes the tort of trespass. It might be what many would, again, call stealing but that is a criminal concept. In torts it is called trespass to property. Household furniture comes under the description of chattels.

Detinue

Detinue is a right to recover possession of the goods in question, and indeed it is the only common law action that allows recovery of goods as a result of trespass. It is somewhat like ejectment with respect to land. Usually it is necessary to show that there has been a demand made for the return of the goods and a subsequent refusal to return them.

Detinue seeks the specific return of a chattel that has been wrongfully retained. Damages can also be awarded in an action in detinue.

People can sue in detinue in a situation where they were in actual possession or where they have an immediate right to possession. Hence the class of potential plaintiffs is a little wider than in the case of trespass to chattels. In both cases the crucial requirement is that there must be an interference with possession.

Say you lent John a book for an agreed term of three months on the basis that he paid you $5. John, as the person to whom you lent the book is known as a bailee for reward*. He has the immediate right to possession of the book for the period stated. Now if Mere took the book from John he could sue in detinue. This right is given to him because there is an interference with his immediate right of possession. In fact if you, even as the true owner, took the book without John’s consent during the period you would be liable in detinue as well. This is because you, as owner, do not have the immediate right to possession. You have created an arrangement whereby you have given that right to the other person.

Conversion

Conversion (or trover) is the action that is taken in cases where there is total destruction of the goods. Essentially the action for conversion is an allegation that a person is dealing with a chattel in a way that is inconsistent with the immediate possession of a person who has a proprietary right in the chattel.

Again, interference* with a right of possession, not ownership alone, is the crucial factor to bring an action in conversion. The person who takes the action may be either:

• a person who was in actual possession of the goods; or
• a person who has an immediate right to possession of the goods.

Note that some owners do not have an immediate right to possession of goods and therefore might not be able to bring an action.

There are many instances of conversion. It could involve a person wrongfully consuming the goods of another without lawful authority, because that person is dealing with those goods in a way that is inconsistent with the rights of the other person. Or it could involve someone, without lawful authority, removing the goods with the intention of permanently depriving the possessor of the possession, use or enjoyment of them. It might even involve a person who has charge of the delivery of items making a wrongful delivery of them to someone else. Another case is where someone makes a wrongful use of goods of another with an intention to permanently deprive them of the goods.

Examples of conversion

The following are some more specific examples of conversion.

You are a supplier of corn. You give your corn to a carrier to deliver to your normal milling company. The carrier intentionally delivers it to the wrong milling company. The milling company mixes it with the corn of other growers and proceeds to grind it. Both the carrier and the milling company are liable to you in conversion.

You own a car. You lend it to a friend for one year. In the meantime you mortgage it to a finance company to secure a loan repayment. You default on the loan repayment and the company writes to you and tells you that it exercises its right to take possession of the car, although it hasn’t actually done so yet. Your friend returns the car to you, not knowing of the claim of the finance company. Your friend has not committed conversion, because without the knowledge of the claim, she had no intention to deprive the finance company of possession. However, if she knew of the claims of the finance company, then she has committed conversion against it.

You lend a stereo to a friend. The friend, without your consent, pledges the stereo to a pawnbroker to raise some money for his needs. The friend has committed conversion of the goods.

A person walking down the street finds some goods that appear to have been lost. She takes them to the nearest corner store and asks the storeowner to keep them while she (the finder) makes some enquiries. After making unsuccessful enquiries, she discovers that the storeowner has given the goods away to a third party. The storeowner has committed conversion against the finder of the goods—it was the finder who had actual possession of the goods.

You leave your furniture with an acquaintance for safekeeping while you look for a new house. You come back two months later and your acquaintance tells you that your furniture was taking up valuable space in his house, so he sold the goods to someone else. He has committed a conversion because he wrongfully disposed of the title to the goods and, of course, such action is inconsistent with your right to possession.

Note that in all cases of conversion it must be proved that a person intended to deprive the other party of dominion over the goods. The wrongdoing must be intentional, not careless or accidental. This feature distinguishes conversion from trespass to chattels. There might be cases where a person takes goods without consent unintentionally. Think about a case where someone takes a car for a joyride. Is that a case of trespass or a case of conversion? Such a case might fall into the area of trespass to chattels, or conversion—as past cases have shown.

Study task 2.1

Consider the basic elements of the tort of conversion and try to construct some facts which would constitute this tort. The "facts" do not have to be "true". Your main aim should be to use your imagination, which is an essential tool in legal problem solving.

 Reading

Jones, Textbook on Torts, chapter 1.

We have specifically asked you to read this chapter after you have completed studying this unit. We hope that your study of the unit will make it easier to grasp the more comprehensive detail in the reading.

 Study task 2.2

Now return to your learning objectives and consider whether you have achieved them satisfactorily.

If not, you should return to any sections that are not completely clear to you before moving on to the next unit.

Key terms

Make sure that you understand each of the terms below. If you do not know the meaning of a term, read the relevant section of the unit again or consult a legal dictionary.
Assault Bailee for reward Battery Conversion Detinue Dominium Ejectment Intangible property Intention Interference Lesser interests Ownership	Personal property Possession Possessor Property Right to possession Trespass Trespass to chattels Trespass to land Trespass to property Trespass to the person Trove

Note from Reading 11.4

·         the basis on which liability was attributed

·         the concept of an occupier

·         the variations among the different classes of persons to whom an occupier owed duties

·         the different types of duties involved in each case

Hints for selected study tasks

For these study tasks you will find sufficient guidance in the study materials, textbook or cases to which you are directed.

Note from Reading 11.1

·         how the court rejected the old position

·         Do you still believe that judges do not make law?

.REVIEW QUESTIONS

1. What elements must be proven in order to establish a cause of action for trespass to land?

2. What factors distinguish conversion from trespass to goods?

3. What is a right of action in detinue and what action is it similar to?

4. What are the three most basic elements in an action in negligence?