Trespass to Land

In one line

Trespass to land is entering, or putting something on, land in another's possession without permission, and it is actionable although no harm is done.

In the wording a student can write in an exam: trespass to land is any unjustifiable interference with land in the possession of another, committed by entering upon it, by remaining on it after the right of entry has ended, or by placing or projecting any object upon it; it is actionable per se, that is, without proof of damage; the interest protected is POSSESSION and not ownership, so a person in possession may sue even a rightful owner who enters without process of law.

Possession, not ownership

This is the most important sentence in the chapter. The action protects possession. A tenant, a licensee in exclusive occupation, and even a person in wrongful possession may sue a stranger who enters. An owner who is out of possession cannot sue in trespass; he must first recover possession, and chapter [Remedies for Trespass to Land] explains how.

The reason is practical: the law wants disputes about land settled in court rather than by whoever is strongest on the day. Section 6 of the Specific Relief Act 1963 embodies exactly that policy by giving a summary suit to a person dispossessed without his consent otherwise than in due course of law, even against the true owner.

The three ways it is committed

1. Entry upon land. Walking on to it, driving on to it, sending an animal on to it, or entering any part of it. The entry need only be intentional in the sense that the defendant meant to be where he was: a person who walks on to land honestly believing it to be his own is still a trespasser, since mistake is no defence, as chapter [General Defences II] explains.

2. Remaining on land. A person who entered lawfully and stays after his right has ended becomes a trespasser. A guest asked to leave who does not leave is the standard example.

3. Placing things on land. Throwing rubbish, piling building material, letting a wall lean over, growing tree branches across the boundary, or allowing water to flow on to the neighbour's land.

Trespass to the airspace and to the subsoil

Possession of land carries with it possession of the column of space above and the soil beneath, so far as is necessary for the ordinary use and enjoyment of the land.

Above. A signboard projecting over a neighbour's land, a crane swinging across it, or wires strung over it are trespasses. Aircraft flying at a reasonable height are not, and statutes deal with them expressly.

Below. Tunnelling or mining under the surface, or driving foundations into the neighbour's subsoil, is a trespass.