Trespass to Land



Trespass to Land

• Definition: voluntary, intentional (or neg) direct physical interference with P’s exclusive possession of land.

• Actionable per se: without proof of damage. Eg. Dumont v Miller: D with dogs went on property, sued even though no damage.

• Onus of proof: P to prove elements then D to show lack of fault.

Elements:

• Voluntary act by D:

o Example: Smith v Stone: D carried onto P’s land by force.

o Public Transport Commission of NSW v Perry: D suffered fit and fell from platform onto railway track. HC held: “it has been established for centuries that a D does not commit an actionable trespass by going on to a P’s land involuntarily”.

o Intention/negligent

o Third party controlled by D: League Against Cruel Sports v Scott: D’s dogs intruded on deer sanctuary.

• Directly causing: differentiation between direct and consequential not always clear

• Gregory v Piper: rubbish left by D on own land, rolled onto P’s land. Held: trespass as interference was result of D’s act and natural/probably forces.

• Southport Corp v Esso Petroleum: oil deliberately discharged into estuary carried by tide to P’s land. Held: consequential

• Reynolds v Clarke: D put rainspout on roof that poured onto P’s house. Held: consequential.

• Interference with the plaintiffs land

Title to sue: who has right to sue?

• Must have exclusive possession, no need for legal title to land.

• Newington v Windeyer: P used grove for recreation, maintained it and engaged in acts of ownership for years, but was not actually registered owner. D who owned houses which backed onto property, started to use land. Held: though not registered, had exclusive possession of land.

• Does not matter if wrongfully possessed.

• “an estate gained by wrong is nevertheless and estate in fee simple” Newington v Windeyer.

• No defence UNLESS D has legal right. Delaney v T P Smith: P possessed house under ineffective lease, failed in trespass action against owner. Held: owner’s legal right defeated P’s possession. YET P would have won if sued against any other person (Glenwood Lumber Co v Phillips).

• Licensee of property has no right:

• License to be on land is merely personal right and does not give possession rights.

• Cowell v Rosehill Racecourse: P bought ticket, but forced to leave after D revoked right of entry. Held: no possession right. P became trespasser once D gave notice of revocation.

• Profit a prendre (interest in product/part of land):

• Mason v Clarke: P, with right to kill rabbits on farm, could sue tenant, who damaged P’s snares.

Nature of land:

• Possession of land: extend only as far up into air or down into subsoil as is reasonably necessary for the use and enjoyment of land.

o Tunneling: is trespass (Stoneman v Lyons: HC held excavation of trench beneath the footings of adjoining landowners garage wall was trespass).

o Intrusion into air: eg. Suspended crane jib (Graham v K D Morris & Sons), shooting into P’s property from own property (Davies v Bennison).

▪ Is not unlimited: Berstein of Leigh v Skyviews & General: D’s flight at low altitude over P’s land to take aerial photo not trespass. Held: P’s rights limited to ordinary use/enjoyment of land.

▪ Does not need to actually interfere: sufficient that it MAY interfere (LJP Investments v Howard Chia Investments: D build scaffold on own land but in a way that it protruded into P’s land at 4.5m above ground). Held: “of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake”

Nature of interference with land:

• Need not actually enter land, so long as D directly causes some object to contact with the property (Davies v Bennison).

Trespass by licensee:

• License may be express (movie ticket), or implied (unlocked front gate of property to get to front door).

• Occupier may revoke at any time, and if entrant does not leave within reasonable time of knowing revocation ( trespasser (Cowell v Rosehill Racecourse).

• Trespass pro tanto: D is trespasser in relation to unlawful acts committed on premises.

o Singh v Smithenbecker: D entered land to take sheep lawfully purchased. But became trespasser once he removed P’s gate and took certain sheep without permission.

o Bond v Kelly: D became trespasser when he cut more timber from P’s land than permitted amount.

o Healing (Sales) v Inglic Electrix: D went to P’s house to take some of their property, but also took P’s. Held: Barwick CJ and Menzies J said D was not liable as part of purpose was lawful. Kitto J said taking P’s stuff made them liable. Thus, there is some doubt as to the trespass pro tanto doctrine.

• Implied license to enter:

o If unlocked, unobstructed path/driveway/yard leading to entrance of a private dwelling ( implied license to enter for lawful purposes of communicating/delivering to occupant (Halliday v Neville: 2 officers entered driveway of house to arrest disqualified driver, held not trespass).

o Will not work if revoked, even for law enforcement: Plenty v Dillon: officer went on property to serve the summons of P’s daughter. Held: even thought authorised by law, still trespass.

o Businesses: implied license limited to existing clients and those who are seeking info for bonafide purposes. Lincoln Hunt Australia v Willesee: consumer complaint reporter and tv crew entered P’s premises to make videotape and question people there. Held: trespass. Awarded damages but not injunction (equitable remedy) to tape if “circumstances are such to make the publication unconscionable”. Notion of unconscionability shown in Rinsale v ABC: knew interview refused, but ABC director went on premises anyway, held as blatant disregard for rights.

Trespass and privacy:

• No separate tort for privacy.

• BUT courts have used trespass to land to restrain some use of film/sound recordings gained by trespass.

• ABC v Lenah Game Meats: person videotaped possum slaughter house and passed to ABC. Held: no injunction granted as trespassers unknown, and no unconscionable either.

• Bathurst CC v Saban: council officer took photographs of D’s property from a public street. Held: no trespass, limited to invasions of privacy taken from physical entry upon land.

Trespass authorised by law:

• Look above at Implied license to enter, bust still liable to trespass unless authorised at law.

• Exception to Plenty v Dillon:

1. To prevent murder

2. If arrestable offence has in fact been committed & A followed into house

3. If arrestable offence is about to be committed & would be committed unless prevented

4. If following an offender running away from an affray

• Statutory authority does not excuse trespass: unless clearly expressed in unambiguous language. Coco v R: listening device planted on A’s land via judicial order under Invasion of Privacy Act 1971. Held: statute did not give police authority to commit trespass.

• Trespass ab initio:

o If entry granted by law but does something unlawful/exceeds/abuses authority ( liable as trespasser from moment of original entry.

o Only applies to positive wrongful acts (not misfeasances). Six Carpenters: failure to pay for wine following lawful entry does not make D trespass ab initio.

• Continuing trespass:

o Occur when D/D’s object remains on property after reasonable time from P’s request.

o Konskier v B Goodman: builder worked on adjoining house and at time, original owner said it was ok since part of work. But after new occupant, complained and not removed. Held: continuing trespass, even though trespass started before he was occupant.

Intentional Torts Relating to Goods:

Goods:

1. Generally tangible. Includes intangible property eg. commercial instruments (Associated Midland Crop v The Bank of NSW), share scripts (BBMB Finance (Hong Kong) v Eda Holdings).

2. Cannot be human corpse. Except in:

a. Next of kin: Smith v Tamworth CC: executors of deceased estate has quasi-property right to control what happens to corpse.

b. Work and skill: Doodeward v Spence: P possessed preserved 2 head stillborn foetus. Held: where P has worked on human body/part to point that it has acquired attributes different from mere corpse, he has right.

1. Trespass to goods

Definition: voluntary, intentional act by D which directly interferes with goods in P’s possession.

1. an intentional or negligent act:

• ie. deliberate, reckless or negligent (National Coal Board v Evans: NCB cut power cable. Held: not deliberate or negligent).

• Negligent is actionable in Aus (Williams v Milotin and McHale v Watson).

• Must be voluntary (Morriss v Marsden: sleepwalker broke valuable vase was not liable).

2. directly causing:

• Example: smashes vase in P’s possession or throws poison bait to P’s dog.

• Hutchins v Maughan: not trespass as D had put poison baits on his land some time before P brought his dogs onto land. Thus, not direct.

3. interference with

• Penfolds Wines: can be mere taking/asportation without damage, handling without authority, unauthorised use of goods etc. are all trespass.

• Mere touching lead to trespass? No clear authority yet, but since actionable per se would suggest so, as does William Leitch & Co v Leydon. Everitt v Martin (NZ authority) suggests that mere accidental touching with no damage/asportation is NOT trespass. Still get nominal damages.

4. the P’s possession of a chattel

• Does not need to own or have legal interest in goods.

• Actual/constructive possession is needed:

1. eg of constructive: owner of racing pigeons has c.p. if D shoots birds whilst they are flying.

• An immediate right to possession will suffice (in some circumstances): Penfolds Wines v Elliot: PW sought injunction against D, who offered bulk wine to customers in any bottles they brought. PW had embossed statement on bottles that they were PW’s property and to be returned to PW if empty. Held: no injunction granted on grounds that no evidence tortious behaviour would continue, thus not suitable remedy.

• Other exceptions to actual possession:

1. Trustee may sue in respect of goods possessed by beneficiary (Barker v Furlong).

2. Executor of deceased estate may sue in respect of deceased’s goods which have not yet come into his/her possession.

3. Owner of franchise in wrecks may sue without having had possession of relevant chattel.

2. Conversion:

Definition: a dealing with a chattel in manner repugnant to P’s possessory rights eg. sale, transfer, destruction, changing nature of thing (Penfolds Wines v Elliot). Not simply an interference.

1. Property: any object that may be personal property (Doodeward v Spence).

• Cheques/negotiable instruments (Lloyds Bank v Chartered Bank).

• Insurance policies (Wills v Wells), share certificates (Gorman v H W Hodgetts & Co), guarantees (McLeod v McGhie).

• Money cannot be subject to conversion, unless particularly identifiable notes (Burn v Morriss) or a case of money (Chairman, National Crime Authority v Flack).

2. Title to sue:

a. Bailment: bailee (keeper) has right to sue, bailor (giver) has not right to sue until bailment has ended.

i. Bailment for limited purposes: bailment ends when bailee acts inconsistently with terms of bailment, and then bailor has right to sue. Penfolds Wines v Elliot: PW (bailor) sold wine and bailed bottles to purchasers. Once empty and bailees (D) used it for other purpose (to hold other wine), then bailment was ended and gave PW immediate right to possession and to sue in conversion.

ii. Bailment at will: bailment is gratuitous and bailee (actual possession) and bailor (right to immediate possession) can sue. Perpetual Trustees & National Executors of Tasmania v Perkins: P was executors of woman and sister’s estate. Had inherited some valuable portraits and loaned to brother who in turn gave to another brother, whose family then tried to sell to SA art gallery. Held: women’s loan was a “gratuitous bailment at will”. Brother’s family and SA art gallery sued in conversion.

iii. Bailment at term: bailor has no right to sue, bailee can sue (actual possession) bailor if bailor wrongfully takes goods during bailment term. City Motors v Southern Aerial Super Service: bailor wrongfully repossessed a vehicle, bailee successfully sued in conversion.

b. Finders: finder has right to sue (possessory title) against all but the true owner (Armory v Delamirie: chimney sweep’s boy found jewel and successfully sued conversion against valuer who refused to return).

i. Except - found on another’s land: if good found attached to/under land/building, then occupant’s rights override finders (Elwes v Brigg Gas: ancient boat deeply embedded in soil, Ranger v Giffen: tin of money buried under house).

ii. Except – found on shop floor: finder’s rights override as shop is public place (Bridges v Hawkesworth: found money on floor).

iii. Except – occupier had “manifested an intention to exercise control over the building and the things which may be upon it or in it”: Parker v British Airways Board: P found bracelet in first class passenger lounge of the D at airport. P gave to D on condition that if owner did not retrieve, P got to keep it. D sold it and P successfully sued in conversion. Chairman, National Crime Authority v Flack: police found suitcase of money in P’s house. Refused to return after investigation. P successfully sued in conversion on ground as occupier of private house, taken to have intention exercise control over goods within house.

c. Lien: right to retain possession of goods pending payment of debt. Holder of lien can sue third parties and even owner of goods (Standard Electronics v Stenner).

d. Co-ownership: co-owners have right to sue (Kitano v Commonwealth), but not each other except where goods destroyed/sold (Parr v Ash). However, recently in Re Gillie & Others ex p Cornell: co-owner converted by excluding other from possession and preventing from exercising rights.

e. Sale: right to sue only when property has been sold and delivered, mere contractual right is insufficient (Jarvis v Williams). BUT in International Factors v Rodriguez, contractual right to immediate delivery of cheque was sufficient.

3. Intention: must be intentional (deliberate) dealing rather than mere negligence (Moorgate Mercantile Co v Finch & Read).

a. Ashby v Tolhurst: car park attendant let a thief (pretending to be owner’s friend) take a car. Held: no conversion as he had no intention.

b. R H Willis & Son v British Car Auctions: auctioneer who sells goods that are not property of vendor. Held: conversion.

c. Acting in good/bad faith is irrelevant, just needs to be intentional. Rendell v Associated Finance: D finance company legally repossessed truck not knowing engine belonged to P. P successfully sued in conversion.

4. Acts amounting to conversion:

a. Generally: dealing which seriously interferes with P’s rights to possession – “in a manner repugnant” to P’s rights (Penfolds Wines v Elliott).Can be difficult to discern.

b. Taking possession of goods:

i. Taking with no intention of making any further use of goods is insufficient. Fouldes v Willoughby: D removed P’s horses from ferry to get P to disembark. P refused and horses left behind. Held: no conversion as D did not interfere wit P’s dominion over horses.

ii. Taking with intention to permanently keep (Rick Cobby Haulage v Simsmetal).

iii. Taking and using goods (Aitken Agencies v Richardson (NZ case): joy rider was liable in conversion, but in Schemmell v Pomeroy held joy rider only liable if car damaged or taken without regard to return).

c. Use: serious misuse will amount to conversion, if it exercises act of ownership.

i. Milk Bottles Recovery v Camillo: D collected and used P’s bottles to sell own milk. Held: liable as conduct involved risk of breakage of bottles.

ii. Penfolds Wines: HC divided.

d. Withholding goods: detention amounts to conversion (if deliberate/reckless).

i. Flowfill Packaging Machines v Fytore: liquidator assigned to D company. P terminated contract and tried to repossess bailed machinery. Lidquidator refused.

e. Sale and delivery: Perpetual Trustees & National Executors of Tasmania v Perkins. BUT sale without delivery of goods is insufficient.

f. Misdelivery: of goods by bailee to wrong person may be conversion (Tozer Kemsley & Millbourn (Asia) v Colliers Interstate Transport Service).

g. Denial of P’s rights, even if not possessing goods: Motor Dealers Credit Corp v Overland (Sydney): D tried to complete sale of car even after P had claimed it. Did not possess it but authorised 3rd party to delivery it.

3. Detinue

Definition: the wrongful detention of goods or chattels. (General Finance Facilities v Cooks Cars (Romford): P leased mobile crane, which was then sold twice to D, held action in detinue).

Actions: court to order return of goods (restitution) OR recovery of its value, and damages for retention.

1. Title to sue:

a. Must establish at least a right to immediate possession. Ownership or actual possession at time is not necessary.

b. Mere contractual right to goods is insufficient. Jarvis v Williams: P sold/delivered goods to D, but D refused to give over agreed goods in return. Held: cannot sue in detinue.

c. Possessory title is sufficient: finder of lost goods can recover (Chimney Sweeper’s case).

2. Demand for the goods:

a. Demand must be unequivocal and specific as to time, place and manner of delivery

b. Lloyd v Osbourne: P demanded D to at once deliver to P or her agent all sheep branded x or FG. Held: insufficient as to place for delivery or identity of agent.

c. Flowfill Packaging Machine v Fytore: P demanded repossession of machinery. Held: insufficient as failed to state delivery address, and also P knew location and could have taken it himself. Young J: D must merely make available P’s goods again by informing of whereabouts and indicating that they would not stop them.

d. Capital Finance Co v Bray: P hire-purchase contract with D who defaulted. Demand D deliver to 1 of 3 locations. Held: contract did not have provision requiring delivery.

3. Wrongfully refused/neglected to return:

a. Need not be in writing, oral is sufficient (Egan v STA).

b. Even if demand not made, if P can prove that D would not have returned goods even in circumstances where demand was made, then can sue in detinue. Suggested in obiter of Egan v STA and Crowther v Australian Guarantee Corp.

c. Excuse (not a legal right to possess) will not absolve D. Howard Perry & Co v British Railways Board: D refused to return because of fear of industrial action if they did.

d. Includes goods carelessly lost/destroyed or where lost without explanation: Houghland v R R Low (Luxury Coaches): P’s luggage lost in transit. Held: detinue unless D can prove lost without any fault on its part.

4. Intention/negligence: whereas conversion is deliberate, D can be sued in negligence in detinue. Eg. Ashby v Tolhurst would be detinue.

5. Replevin

Definition: P can have goods provisionally returned pending final determination of rights by court.

Note: rarely used today due to interlocutory orders, residential tenancies and consumer credit legis.

6. Action on the case for damage to goods

Definition: special damage is sustained by owner of goods, which are permanently damaged (directly/indirectly), irrespective of P’s immediate right to possession or actual. Need to establish ownership: reversionary interest in the goods.

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