TRESPASS TO LAND

According to the case of Plenty v. Dillion, trespass to land is defined as an intentional or negligent
physical interference with a land, that is in the exclusive possession of another, without consent or
any other lawful authorization.

Trespass to land is actionable per se; this means that, one does not need to prove damage or loss.
One only needs to prove that the alleged act of trespass was committed. It also concerns the
protection of property rights.

THE SUBJECT MATTER OF TRESPASS TO LAND

The general rule governing trespass to land is that, he who owns the land is presumed to own
everything up to the sky and down to the center of the earth. In law, this means that, land comprises
of the surface itself, water, buildings, and trees attached to the surface, the airspace above the land,
including the sub-soil beneath the surface. Therefore, the subject matter of trespass to land can be
categorized into three: Trespass to Surface, Trespass to Airspace and Trespass to Sub-Soil.

A. TRESPASS TO THE SURFACE

This refers to any kind of direct physical interference with the surface of the land or property.
Examples are: Digging, felling trees, throwing or projecting objects onto the land, placing objects
on the land, removing doors or windows from a building which is attached to the land.

In the case of Hickman v. Maisey, the court held that though the purpose of the highway was to
pass on it, the defendant had exceeded the ordinary and reasonable use of the highway and was
therefore guilty of trespass.

Again, in the case of Harrison v. Duke of Rutland, the court held that since the plaintiff was on
the highway for another purpose other than passing on it, he was trespassing.
 B. TRESPASS TO THE AIRSPACE

Invasion of the airspace above another’s land constitutes trespass. This is however limited to the
reasonable height at which the invasion would interfere with the full use of the land.

In the case of Kelsen v. Imperial Tobacco Ltd, a sign post that had been fixed to a building
adjoining the plaintiff’s, and protruding about 8 inches into the airspace above the plaintiff’s roof,
was deemed to be an invasion of the plaintiff’s airspace.

In Ghana, by virtue of Section 29 of the Civil Aviation Act, 2004 (Act 678), no action of trespass
or nuisance can lie in respect of transient harmless incursion of an airspace by an aircraft.

C. TRESPASS TO THE SUB-SOIL

There can be trespass to the sub-soil in situations where the mineral rights of the one who possesses
the land have been taken away.

In the case of Cox v. Mousley, it was opined by the court that interference with the sub-soil is
actionable as trespass, at the suit of the person in possession of the sub-soil.

WAYS IN WHICH TRESPASS TO LAND CAN OCCUR

1. Wrongful Entry: this is the commonest form of trespass. It requires that the defendant
physically enters upon the plaintiff’s land without permission. The slightest crossing of
boundaries would be sufficient.

In the case of Basely v. Clarkson, the court held that the defendant mowing the claimant’s grass
on his land mistakenly and involuntarily, was still liable for trespass.

2. Remaining on the land when permission has been revoked: A person who has lawfully
entered onto the land in possession of another, commits trespass to land if he remains there
after his right of entry has ceased or has been terminated.
 3. Placing or projecting any object upon the land: It is a trespass to land to place any
chattel on, or direct any chattel towards the claimant’s land. It is also called continuing
trespass. This is because, the trespass continues as long as the object remains on the land.
Examples: Leaning a ladder against the claimant’s wall, dumping of rubbish, parking of
vehicles, allowing objects to project on an adjoining land. The occupier of the land can
take reasonable steps to remove such objects. In the case of West Ripped v. Baldock, a
ladder that was leaning against a wall amounted to trespass. In the case of Konskier v.
Maisey, the court held that the act of leaving the debris at the completion of the demolition
operations was a trespass.

4. Moving to places beyond the area that is permitted while on the land.
5. Interfering with the airspace of a reasonable height above the land.
6. Interfering with the sub-soil of another’s land.

7. Committing trespass ab initio: Where the defendant enters upon the land of the claimant
with the authority of law and later abuses that right, he becomes a trespasser from the very
beginning that he entered upon the land. This rule is applicable only when the abuse is a
direct wrongful act. Presently, the application of this doctrine lies in the use of police search
warrants.

In the Six Carpenters Case, the court held that an entry authority or license is giving to anyone by
law and he who abuses it shall be a trespasser from the beginning. In Ella’s v. Pasmore, it was
held that as the police officers were entitled to enter the land or property for the purpose of the
arrest, justification remained and was not at all affected by the wrongful seizure of documents.
They were trespassers only as to the documents.

WHO CAN SUE FOR TRESPASS TO LAND?

This tort protects a person’s interest of possession in the land from intrusion, rather than ownership.
Therefore, only a person who is entitled to immediate possession can sue. Possession may be actual
or constructive. Actual possession requires the plaintiff to demonstrate exclusive physical control
and occupation of the land and no one else has possession.
In the case of Portland Management Ltd v. Harte, the court held that where an absolute owner
brings an action for trespass, he must prove his title and an intention to regain possession. The
slightest act by the owner indicating an intention would be sufficient. The defendant must then
show right to possession, inconsistent with the claimant’s ownership. The mere use without
excessive possession is insufficient.

A landlord cannot sue for trespass to land while the lease he has granted subsists. This is
because, the tenant is now in possession. The landlord would have the right to sue only if there is
damage done to his reversionary interest.

Possession may be evidenced by occupation, or if unoccupied, by having a key or other means

of entry to a building. This is illustrated in the case of Wuta Ofei v. Danquah, the court held
that the claimant acquired the land and put pillars on it; but did not take immediate possession.
However, the presence of the pillars with her initials was sufficient to prove possession by the
claimant.

Averment of ownership amounts to possession: Thus, in the case of Wiredu & Another v. Mim
Timber Co. Ltd, it was said that a person in possession of a land, even if he is a trespasser, can
bring an action against anyone who trespasses, except the true owner of the land or the true owner’s
agent(s).

Right of a relative to sue: A person who has the right to immediate possession of land can sue
for trespass to land after he has gained possession. Hence, a lessee can sue for trespass.

ELEMENTS OF TRESPASS TO LAND

For the plaintiff to succeed in a claim of trespass to land, the plaintiff must prove or show that
there was a direct act of the defendant, the act was voluntary, physical interference with the land,
lack of consent and the intention of the defendant.

1. Direct act of the defendant: The act complained of by the claimant has to be done directly
on the claimant’s land. The trespass must be as a result of the immediate act of the
defendant, not consequential.
In the case of Esso Petroleum v. South Corporation, the court of appeal held that the defendants
were not liable for trespass to land because the oil was not directly on the foreshore, but in the
estuary. Thus, the act was not direct but consequential. In Pickering v. Rudd, the court stated that,
to cause anything that has size and mass to come into contact with another’s land is a trespass. The
holding of the court was that, Rudd committed no trespass to land as the projection of the plant
from Pickering’s Garden to his wall caused him inconvenience and Rudd was right to remove it.

2. Voluntary Act: The interference with the land must be done voluntarily. The defendant
must not be coerced or influenced in any way to physically interfere with the claimant’s
land. He must do so by his own will or desire. Once the act was done voluntarily, the
defendant does not need to know that he is trespassing to be guilty.

In the case of Stone v. Smith, the court held that a person who is forcibly carried or thrown into
the land is not trespassing. It can only be a trespass if the person has voluntarily entered the land.

Exception - Gilbert v. Stone the principle was established that fear for one’s life or some other
compulsion is not a defense to trespass to land where the defendant acts voluntarily.

3. Physical Interference with the land: this element talks about the intrusion of the quiet
enjoyment of the actual possessor of the land or property in question. Physically entering
another’s land, placing or projecting objects onto another’s land, digging, feeling a tree,
interrupting the use of the airspace, are all forms of physical interference with the land.

In the case of Lavender v. Betts, the court held that even though the plaintiff had not paid his rent,
he had gained status as a statutory tenant, and exercised exclusive occupational rights which the
defendant (landlord) had interfered with by his action of removing the doors and windows of the
tenant without resort to the law, and this was a breach of the covenant for quiet enjoyment being
an implied term of statutory tenancy. The plaintiff was therefore entitled to punitive damages.

In the case of Perera v. Vandiyar, the court held that the landlord’s action did not constitute
interference with any part of the demised premises. Therefore, it could not be regarded as a
trespass.
 4. Lack of Consent: A stranger who enters another’s land or property without consent or
permission from the one in possession is a trespasser. Again, where a person enters
another’s land with permission or a license, the person becomes a trespasser if he refuses
to leave or overstays after the permission or license has been revoked. However, a
reasonable time must be given to the person to leave the premises; it is after the time has
elapsed that the person would qualify as a trespasser.

Case law: Cowell v. Rosehill Race Course- the court held that the ticket established a contract
between Cowell and the operators of the show. However, the ticket did not have anything to do
with the rights of the land. Therefore, as far as the land was concerned, the operators could ask
him to leave at anytime and could remove him by the use of reasonable force.

Hurst v. Picture Theatres – A person who purchases a ticket has the right to stay for the whole
performance so far as he behaves properly and complies with the rules of the management.

Robinson v. Hallert – the court held that, after a permission is revoked, the person must be given
reasonable time to leave. Therefore, after the revocation of the license and the reasonable time to
leave, reasonable force can then be used to drive the person out.

5. State of mind of the defendant: the mind of the defendant at the material time of
committing the act or conduct, amounting to trespass, must be intentional or negligent.

DEFENSES AVAILABLE TO THE DEFENDANT

a. Consent or license: there is no trespass where the is implied consent. It is only when the
consent is exceeded or revoked, that a trespass can occur. In the case of Robinsin v. Hallet,
the court held that, even though the license was revoked, a reasonable time limit was to be
given to them and this had not been done.

b. Justification by law: A right that allows a person to enter into another’s land without
committing a trespass. The police have powers under Sections 4 and 5 of Act 30. There is
a right to enter a claimant’s land in pursuance of a public right of way. There is also a right
 at common law to enter the claimant’s land especially where a landlord has to enter to ask
for rent.

c. Necessity: it is a defense to show that it was necessary for the defendant to enter the
claimant’s land. In Rigby v. Chief Constable of Northington, it was held by the court that
the defense of necessity was available for trespass.

REMEDIES AVAILABLE TO THE PLAINTIFF OR CLAIMANT, IF THE DEFENDANT

FAILS TO PROVIDE A REASONABLE DEFENSE.

1. Damages: this monetary compensation would be nominal if there is only a slight damage
to land or property.

2. Injunction: this is a remedy that is given at the discretion of the court to prevent further
cases of trespass to land. the claimant must satisfy the test for the grant of injunction.

3. An action for a declaration of ownership.

4. An action for the recovery of land if a person has been deprived of lawful possession to
the land.