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The civil wrong known as "trespass to land" is governed by the Small Trespass Act supplemented by the common law. A person is said to trespass on another's land where he or she enters upon or interferes with land in the other's possession without a lawful reason to do so. The slightest crossing of the boundary of the land is sufficient. Hence, it was held in the 19th Century English Case, Ellis v. Loftus Iron Co, that "if the defendant place a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it." Further, a person will be held liable where his or her animal trespasses on another's land. An animal in this context is taken to mean a camel, horse, mule, ox, ass, sheep, goat, pig or "feathered stock", namely, a fowl, turkey, peafowl, duck, goose or guinea-bird. While actual damage to the land is necessary to sustain an action for trespass by an animal, in the case of trespass by a person no actual damage to the land is required; the mere act of entering upon the land is enough.

An act or interference, to be a trespass, must contain two main ingredients. The first is that the thing trespassed on must be land, that is to say, real or incorporeal property. This includes (a) the soil surface and anything attached to it like grass, shrubs, trees or structures built on the land; (b) the sub-soil; and (c) whatever airspace above that is considered necessary for the full use of the land below.

The second ingredient is that the act complained of must be a physical interference, that is to say, a physical act done by the person accused of trespass or by his or her animal, as the case may be. But, even in the case of trespass by a person, it is not required that the trespassing act be done directly by the person. Thus, a trespass will be held to have been committed where a person deliberately places matter in a position where natural forces (for example, rain, sea or wind) will carry it on to another's land. It is for this reason that ship-captains and owners whose ships dump oil at sea which finds its way to the seashore are frequently held liable for damages for trespass.

It is a trespass, therefore, for a person to erect a fence upon even a square inch of his or her neighbour's land. So, also, is the arbitrary cutting of a neighbour's mango tree because it is thought to obstruct a view of the sea. Further, a landlord who removes the doors and windows of a house rented to his tenant commits a trespass, although no trespass is committed if he disconnects the electricity supply to force the tenant to vacate. In the latter case, alternative remedies are available to the tenant. A trespass may be committed by placing a ladder against another's wall or by driving a nail in it or by placing rubbish against it or by growing a plant up the wall. It is also a trespass to erect a signboard in such a manner that it projects over another's shop, or to shoot into or over another's land, or to have a crane hanging over another's land. A most common kind of trespass occurs where animals owned by one person strays on to land in possession of another, causing damage to plants and crops.

It should be noted that a person who exceeds his or her right to another's land as, for example, by using it for a different purpose may be held liable for trespass. Thus, although a member of the public is entitled to use the public road for the purpose of going to and fro, he or she may be liable for trespass where such a road is used as a make-shift garage or for tying animals or for picketing a business place unless allowed to do so under the law. By the same token, a person would have exceeded his right to another's land and thereby committed a trespass where he or she refuses to vacate premises after the licence or tenancy has expired.

It should also be noted that every time a trespass is committed it becomes a fresh trespass for which the delinquent may be held liable again and again. In Holmes v. Wilson, where the defendant was held liable in damages for placing supports for a road, on the plaintiff's land he was held liable a second time for not removing the supports.

Who, you may ask is entitled to sue another for trespass? To sue for trespass one does not have to be the legal owner of the land. In fact, as has been earlier indicated in respect of a landlord wantonly removing doors and windows of his premises to inconvenience his tenant, the legal owner may well be sued for trespass on his or her own land. It is sufficient that the party suing is in exclusive possession of the land interfered with, that is to say, it is under his or her total possession. This means that in the case of leased land, it is the tenant in occupation, rather than the landlord, who is the proper person to bring an action for trespass. In fact, the landlord may sue only where actual damage is done to the land. It means, further, that a bona fide squatter in adverse possession on another's land for 12 years or more may sue all others, including the dispossessed owner, for trespass. It follows, therefore, that neither a guest nor a lodger in a private house is competent to sue for trespass. That is so because both are licencees without exclusive possession of their premises; possession remains in the landlord.

It stands to reason, then, that a good defence to an action for trespass is that the defendant has a lawful ground for entering upon or interfering with the land. Such a ground may arise in a number of situations. One is by operation of law. A person is permitted by law to enter upon adjoining land to abate any nuisance as, for example, to dispose of a carcass likely to create a health hazard to neighbours, or to prevent a fire from spreading. Again, where a person wrongfully places goods on the defendant's land, the defendant is entitled by law to enter upon that person's land for the purpose of depositing the goods there. And a defendant may be justified in trespassing on the plaintiff's land to retake goods, the property of the defendant, which have been stolen by the plaintiff.

A lawful reason to trespass may also arise from the act of the plaintiff or those from whom he took title. The most common case of this is that of easements. A well-known example of this is a right of way like a short cut across the plaintiff's land to enable the defendant to reach his or her own. Another is where the defendant is allowed to hang clothes lines across his or her neighbour's yard. A third would be the right given to the defendant by the plaintiff's predecessors in title to park his or her vehicle in a section of the plaintiff's driveway.

But, except where the trespass was done involuntarily, that is, without the conscious action of the trespasser, it is no defence that the entry was due to a mistake of law or fact. A mistake of law would be committed where, for instance, the boundary between the land of both parties was so uncertain as to cause the defendant in mowing his own grass to mistakenly mow some of the plaintiff's. A mistake of fact would arise where goods were mistakenly delivered to the wrong address and are, as a result, left on the plaintiff's land without his or her consent. Evidently, even where the entry upon the plaintiff's land is made voluntarily, that is to say, with an intention to enter or, for that matter, negligently, without any intention to enter at all, mistake of law or fact is no defence.

A number of misconceptions about the right of citizens to enter upon land adjacent to the sea or to the island's rivers need to be laid to rest. Members of the public have no general right to pass on the foreshore for the purpose of bathing in the sea. The only purposes for which they are entitled to use the foreshore are for fishing and for navigation in the sea and purposes connected thereto. Similarly, the public has no general right to make use of banks of a river whether for passage on foot or for towing craft. In effect, members of the public who try and assert these non-existent rights on private lands may be held liable for trespassing.

Finally, there are a number of remedies available against a trespasser to land. One is a declaration that the defendant is not entitled to continue in occupation of the plaintiff's land. Another is an injunction restraining the defendant from remaining on the land trespassed upon. Then, there is possession, by which the plaintiff regains the said land. Yet another remedy is damages, that is to say, the payment of money to compensate for loss and injury suffered by the plaintiff as a result of the act of trespass. And, as the case may be, the plaintiff may seek aggravated damages in further compensation for any ridicule, contempt and humiliation or anguish or mental distress suffered. It is only in exceptional situations that a court will give what is called exemplary damages as an alternative to aggravated damages. This is given not so much to compensate the plaintiff but to punish the high-handed conduct of the defendant.

In closing, we should stress that in respect of dispensing these remedies a Magistrate's Court has very limited jurisdiction. By virtue of the Small Trespass Act a Magistrate has no power to try a suit for trespass by an animal if the damage alleged to have been done exceeds $1,000.00. Further, a Magistrate has no authority to give damages for trespass by a person in excess of that amount. Nor is a Magistrate empowered to try a matter in which the question of title to land or of a right of way or other easement is involved. These questions are for determination by the High Court. So, too, are relief by way of declaration or injunction.

(William "Para" Riviere is an Attorney-at-Law)

© William Para Riviere, 2010


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