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TRESPASS TO LAND

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Definition of land

Section 5 of the National Land Code defines land to include; surface of the earth earth below the surface

(a) The (b) The (c) All (d) All

vegetation and other natural products things attached to the earth covered by water
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(e) Land

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Trespass to land definition


An

act of direct entering or remaining on land or directly causing any physical matter to come into contact with land in the possession of another without lawful justification. tort protects the interest of the plaintiff in having his land free from physical intrusion of a direct nature.
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This

Basic characteristics
Trespass

to land is a tort actionable per se (without proof of actual damage) is a continuing wrong if a trespasser remains on the land, or allows things he has unlawfully placed on it to remain there, such trespass can be the subject of a fresh action for each day that it continues.
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It

Cheah Kim Tong v Taro Kaur (1989)


Fact:

The Ps alleged that the Ds house was encroaching on their land. D argued that her house was built in 1968 and the P had become the registered owner only in 1980. Previous owner of the land never raised the issue of encroachment. This was a case of a continuing trespass as long as 4/22/12 the D did not remove the

Held:

Essential Elements

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Direct interference
The

element of directness is what distinguishing trespass from other torts which may also involve land for e.g. nuisance, negligence and R v F. means the invasion of the Ps land is not merely consequential upon the act of the D. difficult

Direct

However 4/22/12 sometimes it is

Thinking point?
Which

of the following are

Direct interferences:
-

Smoke from a neighbours bonfire. A farmers sheep grazing Loud music from
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on the land of another .


-

a nightclub.

Types of interference

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Wrongful entry

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Remaining on the land


If

a person entered into the land with permission of the owner but remains there beyond that permitted time he may be liable for trespass. e.g. a tenant may become a trespasser after the expiration of tenancy period.
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For

Throwing/placing/projectin g
Trespass

may be committed by throwing, placing, projecting or causing other objects to come into contact with the land. is not necessarily involved personal entry. encouraging a dog to run to Ps land, dumping rubbish, driving nails into the Ps wall, branches4/22/12 of tree on neighbours

It

E.g.

2nd element - Possession


Trespass It

to land is a wrongful act against possession. aims to protect a persons possession of his land. basically means the right to exclude others, whether or not the possessor physically present. order to succeed in his action 4/22/12 for trespass, the P must establish

Possession

In

Types of possession

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Possession in law
A

person is said to have possession in law if he has the intention not merely to exclude the world at large from interfering with the thing in question but to do so in his own account and in his own name. registered owner of the land, landlord, a holder of title.
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E.g.

Possession in fact
Refers

to a real occupation of the land. The fact that he is in occupation of the land may give him a right to exclude others from interfering. to give a right of action in trespass, possession must be exclusive. possession in law exist in conjunction with possession in 4/22/12

However

Normally

Thinking point?
Can Can

you sue a trespasser to your hostel room? a tenant sue a landlord for trespass?

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Constructive possession
When

a person who is entitled to immediate right to possession actually enters upon his land and acquires possession, he is deemed to have been in possession from the moment the right accrues. can sue for acts of trespass committed while he was actually out of possession (known as 4/22/12 trespass by relation)

He

Cases
Sidek

Hj.Muhammad v the Government of the State of Perak although the P had occupied the land for more than 20 years, the court held they were squatters. Therefore, they have no right either in law or in equity. a squatter has no right to bring an action for trespass. In fact they can be sued by the 4/22/12 owner/ state authority for

Principle

TOL (temporary occupation licence) holder


Under

the law a TOL holder has exclusive possession of land during the period of the licence. Bibi v Mydin the D occupied the house with the consent of previous holder of TOL. The TOL was granted to the P. The D was a trespasser from the 4/22/12 moment the previous

Julaika

Held:

3rd element - intention


A

person may be held liable for trespass to land if he intentionally and voluntarily entered into other person land without permission. is immaterial whether he really intended to invade/trespass the Ps land. is no defence in trespass. The D may be liable even though he does not know that he is 4/22/12

It

Mistake

Types of trespass to land

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Trespass on the highway


As

the highway may only be used for the purpose of passage, a person may held liable for trespass if he used it for other purposes (unreasonable use of the highway) the person in possession of the soil on which the highway rests and the owner of the adjoining land to the highway.
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Against

Hickman v Maisey (1900)


Fact:

The P owned the soil of a high way, and occupied adjoining land, on which racehorses were trained. The D traversed the highway for two hours to obtain information on the speed and performance of the horses. This was not an ordinary and reasonable use of the highway. The D had abused his 4/22/12 right of entry and was therefore a

Held:

Trespass to the subsoil


A

person owns land below the surface as much as it is reasonably necessary for lawful use and enjoyment of the said land. any intrusion upon the soil is just as much as entry upon the surface. For e.g. Building under ground tunnel. type4/22/12 of trespass is no longer

Therefore,

This

Trespass to the airspace


Originated

from the maxim cuius est solum eius est usque ad coelum at ad inferos (Whoever possesses the land also possesses the sky above it to the highest heavens and the earth beneath it to the greatest depths). this right has been limited by statute.
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However,

Limitation to the right to the airspace


Section

44(1) of the NLC gives right to the owner and person in possession of the land the exclusive use and enjoyment of so much of the column of airspace above the surface of the land, and so much of the land below the surface, as is reasonably necessary to the lawful use and enjoyment of the 4/22/12 land.

Section 76(1) of the Civil Aviation Act 1969


The

section provides that no action in trespass or nuisance shall lie by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable or the ordinary incidents of such flight it causes actual loss to a
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Unless

Cases
Kelsen

v Imperial Tobacco Co. An advertising sign erected by the D projected about 8 inches into the airspace above the Ps single storey shop. the interference is amounted to trespass. The Court granted mandatory injunction to remove the sign.
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Held:

Bernstein v Skyviews & General Ltd


Fact:

The D flew over the property of Lord Berstein and took aerial photographs. Trespass was not committed because a land owners right only extend to a reasonable height above the property, not to a height of several hundred feet above the land.
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Held:

Karuppannan v Balakrishnan
Fact:

The side windows of the Ds four-storey shop house were protruding into Ps land. As the owner of the land, the P is given the exclusive use of the airspace above the surface of the land. Therefore the D had no legal right to encroach into the airspace of Ps land unless the P allowed it.
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Held:

Trespass ab initio
This

doctrine applies when a person enters the land or premises of another under the authority given by law and subsequently abuses it by an act of misfeasance (positive wrongful act). He is then to be regarded as a trespasser from the moment of entry. rule was originally designed 4/22/12 to provide a remedy v. abuse of

This

Conditions

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1st element - Authorised entry


The

entry must be in pursuance of a right conferred by common law or statutory law. does not apply to an entry under a contract or leave granted by the occupier.

It

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2nd -Wrongful act misfeasance


The

subsequent abuse must amount to a positive wrongful act (misfeasance) and not merely an omission or nonfeasance. Six Carpenters case (1610) 6 carpenters entered an inn (this is a lawful right given by law). They drunk a wine but refused to pay. Although they had abused 4/22/12

The

Held:

3rd element unjustifiable entry


The

wrongful act must make the defendants presence totally unjustifiable. if there is an independent reason exist for the entry which is unaffected by the wrongful act, the doctrine does not apply. v Pasmore (1934) police constables lawfully entered 4/22/12

Therefore

Elias

Decision
They

were trespassers only as to the documents which were wrongly taken but they were not liable as trespassers ab initio for damage to the premises which they had lawfully entered for the purpose of the arrest.

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Defences

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Licence
There

can be no trespass if a person or object is on the land with the express or implied consent of those in possession. a person is called a licensee e.g. a news paper distributor, bread seller, grass cutter etc. may be liable for trespass if he exceeds his licence.
4/22/12 the licence is revoked the

Such

He If

Justification by law
Acts

which would otherwise be trespass are frequently prevented from being so by the existence of some justification provided by law. justification is conferred either by common law or statute. under common law, a person may enter the land of another to abate a nuisance. 4/22/12

This E.g.

Necessity
In

cases of rescue, self-defence or attempting to avoid accident, trespass to land is not actionable because such cases are considered as necessity. in order to raise this defence there must be an actual danger and the steps taken must be reasonable.
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However,

Re caption
A

brief trespass to recover property which has got on the land of another will be a defence. e.g. if As cows or sheep wander on Bs land, A has a right to enter Bs land to get them back.

For

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Remedies

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Re entry
This A

is a self-help remedy.

person entitled to immediate possession of the land may re enter such land either personally or through a servant or agent. may use reasonable force if the trespasser refuses to leave.

He

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Ejectment
Govern An

by section 7 & 8 of the Specific Relief Act. action for recovery of land will enable a P to obtain an order for possession and writ for its enforcement against a person in occupation of his land. is a special procedure provided in the Rules of High Court 1980 (Order 45 rule 3. ) 4/22/12

There

Action for mesne profits


This

is an action by the P claiming possession for the damage suffered by being kept out of possession. e.g. he can claim for rent and the cost of the action. is normally joint with an action for recovery of land.
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For It