GROUP ONE

LEONARD JOHNS OTIENO G34/37282/2013

NYONDA BENARD OBADO G34/37906/2013

MARLEEN ATIENO G34/36436/2013

OBANDE ESTHER NEKESA G34/36761/2013

PRINCE JARED ATELA G34/36221/2013

MONG`ARE JOSHUA OYARO G34/35503/2013

What is land?

This is the earth (ground and buildings / fixtures attached to or sunk into. It includes natural
features and activities directly involved with it).

In Bernstein v Sky views Ltd [1978] 1 QB 479 the defendant took aerial photos of the Plaintiff’s
property and offered to sell them to him. The Plaintiff sued the Defendant claiming trespass. He
relied on a Latin maxim which stated that the owner owned the land “up to the heavens and
down to hell.” Lord Griffiths disagreed with this, stating that in order to determine the height of
airspace one needs to look at what is necessary for the owner’s enjoyment. He thus stated that:

“This balance is in my judgment best struck in our present society by

What is trespass?

This is the unlawful intrusion that interferes with ones property, goods or person

What is trespass to land?

This is when a person directly enters upon another’s land without permission or remains upon
the land or places, projects any object upon the land.

TYPES OF TRESPASS TO LAND

1. TRESPASS BY RELATION

It involves the immediate right to posses and signifies the lawful right to retain possession when
one has it or one has acquired it i.e. once a person is entitled to immediate possession of land, he
is deemed to have been in possession from the moment that his right to it is accrued.

He can therefore sue for acts of trespass while he was actually out of possession and it also
provides foundation for the claim for damage suffered by a person as a result of having been kept
out of possession of his land

If A owns land which he sells to B,C passes before B has taken actual possession of the land and
in the meantime C commits an act of trespass on the land , B may sue C for the trespass
notwithstanding that he had not yet taken possession of that land when the act of trespass was
committed. That means B’s title relates back to the time when he first became entitled to take
possession i.e. the time he bought the land from A.
(i)Trespass on airspace

This is when an object(s) protrude onto another airspace e.g. advertising boards or scaffolding
are found to be trespass. It is generally presumed that where a person has exclusive possession of
land, they also have exclusive possession of airspace. The circumstances in which the alleged
trespass occurs helps to determine whether the action is a trespass. E.g. a bullet flying across,
which does not land there is a trespass. An aeroplane which flies above is not a trespass.

In Kelsen v Imperial Tobacco Co [1957] 2 QB 334, D committed trespass by allowing an

Note that s76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or
trespass by reason only of the flight of an aircraft over any property at a height above the ground
which is reasonable. However, s76(2) confers a statutory right of action in respect of physical
damage caused by aircraft, actionable without proof of negligence.

The issue of airspace trespass is further explained herein above in the case of Bernstein v Sky
views Ltd [1978] 1 QB 4791

2. TRESPASS BY PLACING THINGS ON LAND

Is committed by him who places any material thing on the plaintiffs land or who allows such
material to come into contact with or cross boundary of the plaintiff’s land. This type of trespass
is similar to nuisance but the two are different in the following aspects:

In trespass, injury is direct since it affects the plaintiff’s possession but in nuisance the injury is
indirect because it is the plaintiffs comfort and convenience in the use and enjoyment of land that
is affected rather than its possession.

While trespass relates to possession of land, nuisance relates to the use or enjoyment of land i.e.
in trespass possession of land is at stake, while in nuisance it is the use and enjoyment of the land
that is at stake.

 (i)Trespass on highway

Walking onto land without permission, or refusing to leave when permission has been
withdrawn, or throwing objects onto land are all example of trespass to land. For example,

It is proper to note that in this scenario it must be proven that the trespasser had entered the land
and it was voluntary.
This is divided into two one:

(a) Entering into the land

(a) Entering into the land

This is when one walks into anothers land, throws something or leave a part of his property to
enter into the said land

Basely v Clarkson (1681) 3 Lev 37, below.

D, owned land adjoining P.in mowing his own land he involuntarily and by mistake moored
down some grass from the land belonging to P.it was held D was liable for trespass since in
trespass to land once it can be proven and is not by force or coercion then D is liable regardless
of intent,mistake or ignorance .

In the case of, Smith v Stone (1647) KB below

D, was curried onto P’s land .P brought action in trespass .it was held ,he was not on the land
voluntarily therefore he was not liable

(b)Remaining in the land after being asked to leave

When one allows the other in his/her land for a period of time and the time elapses or he/she
refuses to leave after being asked to leave he/she will be liable for trespass

Minister of health v Bellotti

The respondents were evacuees from the Gibraltar and occupied premises at an evacuee’s centre
under license from the Ministry of Health. The respondents were licensees for valuable
consideration in respect of the premises which they occupied and licenses extended to allow
them to live in their flats, to have furniture of their own and which in fact they did and also to
have their wives and families there .Differences arose between the respondents and officials at
the ministry and the respondents were each given a week to evacuate the premises. They failed to
leave and after an attempt to eject those proceedings were taken in the county court to obtain
orders for possession. It was contended that the notices were invalid on ground that the time
given to vacate the premises was unreasonably short hence licenses were not effectively revoked.

Held: the length of time to be given to licensees on the determination of the licenses must depend
upon the circumstance of any particular case and in the present case, the time given was
insufficient.
(ii) TRESPASS TO SUBSOIL

The surface and the subsoil can be possessed by different persons. If A is in possession of the
surface and B, the subsoil and I walk on the land that would result into trespass against A and not
against B.

If I dig a hole vertically in the land, that would be trespass against both A and B. If I bore a
tunnel from my land into B’s subsoil, that would be trespass against B only.

Even if the land owner has been deprived of ownership of minerals by statute, intrusions beneath
the surface such as pipelines in order to obtain the minerals still amounts to trespass, though in
such a case the quantum of damages will be very limited.

In Bulli Coal Mining Co v Osborne [1899] AC 351, the Ds mined from their land through to
the P's land. This was held to be trespass to the subsoil.

(iii)CONTINUING TRESPASS

A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully
placed on land. It will lead to a new cause of action each day for as long as it lasts. In the case of
(Holmes v Wilson and others (1839) 10 A&E 503

The Ds built supports for a road on P's land. The Ds paid damages for the trespass, but were held
liable again in a further action for failing to remove the buttresses

In Konskier v Goodman Ltd [1927] ALL ER 187, the Defendant was doing repairs on his roof.
He wished to go onto the neighbour’s roof in order to work on his chimney. He was allowed to
do this, but, he left rubbish on the roof. This blocked the gully and the basement was flooded.
The Plaintiff sued for trespass to land. The court held that the rubbish left behind was a trespass
and that this was an ongoing trespass and so, did not diminish the Plaintiff's ability to sue.

REFERANCES

1. Tort cases and material by sweet & Maxwell.