“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all”: Entick v Carrington (1765) 95 ER 807 at 817.

The harm resulting from trespass is already in the in already in the intrusion on land.
Even if the plaintiff has not suffered from tangible damage, a defendant can still be liable in trespass – it is actionable per se.
This is unusual in the law of torts, which is usually about receiving compensation for loss.

3 elements:

Voluntary act of intrusion
A physical act must be done directly on to the plaintiff’s land

Southport Corporation v Esso Petroleum Co Ltd at 195, cf nuisance
Requirement of directness and physicality.
E.g. If Maria sets foot onto her neighbour’s land, that is a physical act.
However, if she makes pickled cabbage, and the smell wafts over to her neighbour’s land, that smell is not a physical entity. There is no physical intrusion, so no trespass has been committed.

The plaintiff must have exclusive possession of land

This is because trespass is concerned with protection of possessory rights.

Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB

A ship releases oil in the estuary of a river. The oil is carried by tide to the foreshore of the plaintiff, causing significant damage.

Plaintiff had pleaded their claim in 3 different causes of action – trespass, nuisance, negligence.

“In order to support an action for trespass to land, the act done by the defendant must be a physical act done by him directly on to the plaintiff’s land.” – Lord Denning

In Read v Lyons, Vicount Simon affirmed distinction that circumstances in Rylands v Fletcher did not constitute a case of trespass because the damage was consequential, not direct.
Here, the discharge of oil was not done directly on the plaintiff’s foreshore, but outside in the estuary. It was carried by the tide onto their land consequently and was not direct.
There was therefore no trespass.

Cf trespass in tikanga Maori

Land in tikanga is conceptualised differently than that in the common law.

Basis in concept of mana whenua (and collective and tribal title), not individualised title
Examples of aukati (no-trespass rāhui): see Hirini Mead Tikanga Māori (revised ed, Huia, 2016) at 155
See ET Durie “Will the Settlers Settle?” (1996) 8 OLR 449

What constitutes an intrusion upon land?

Lecture 26: (28/05/20)

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 489

Facts

Defendants took an aerial photo of the plaintiff’s country house as a part of thousands of photos taken over the past 17 years as part of their business offering them for sale to the owners.

Plaintiff alleged that the defendants wrongfully entered into the air space above his premises – trespass, actionable invasion of his right to privacy

Issue

The issue was whether an aircraft flying hundreds of feet above the plaintiff’s house to take a photograph of his house was a trespass.

Rule

Plaintiff relied on the old Latin maxim usque ad coelum – to whomsoever it belongs, it is his all the way to the heavens (and all the way to hell):

Court accepted that an owner has certain rights in the air space above their land
In Kelsen v Imperial Tobacco [1957], McNair J granted a mandatory injunction which ordered the removal of a sign which projected only 8...

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Trespass to land

Elements of the tort of trespass to land