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Trespass to land, Private nuisance, Rylands - Coggle Diagram

- - - - Ellis v Loftus Iron : put his food = walked half a mile
  - - - intrusion MUST be direct
        
        e.g. walking, throwing rubbish
      - indirect intrusion NOT actionable
        
        e.g. tree branch spread over boundary
        
        might have claim in nuisance
        
        e.g. Miller v Jackson: cricket game, ball into other's garden --> Indirect NOT trespass
        
        but prob negligence/nuisance
    - - interference w subsoil
        
        Bocardo SA v Star Energy UK
        
        D extract oil, pipeline cross C's land below surface
        
        D liable for tres, owner entitled to everything below up to a point - 800 ft not deep enuf
        
        whoever owns the soil - up to heaven down to hell
        
        limits: did not extend to air space
        
        limit 2: subsoil has stopping point, in this case hasnt reach that
      - interference w airspace
        
        structure fixed to land
        
        D erects a structure, overhangs C's land --> tres
        
        Anchor Brewhouse v Berkley
        
        D's crane swung over to C's land, D tres
        
        structure NOT fixed to land
        
        C's rights in airspace extend only to such a height necessary for ordinary use & enjoyment
        
        Bernstein v Skyviews
        
        D aircraft flew over C's house, take pic
        
        NO trespass
        
        when interference not fixed to land, C's right extend only to such a height necessary for ord. use & enjoyment
        
        this case plane is high enuf
    - - only act of entry must be intentional
      - no need for intention to trespass
      - 1) Voluntary entry
        
        liable in tres for any intrusion made voluntarily
        
        no defence to say trespass was honest mistake
        
        e.g. lost, or not aware of it can be tres
        
        voluntary = D's control over movement crossing the boundary
        
        Gillet v Stone
        
        D escape those threatening him, went to C's land
        
        Trespass, D still voluntarily enter
      - 2) involuntary entry
        
        dont have control over body movement
        
        e.g. got push into land
        
        Smith v Stone
        
        carry into it by force, NOT trespass
      - 3) Negligent entry?
        
        rule not clear
        
        League Against Cruel Sports v Scott
        
        C owned sanctuary, D's hound went into C's land chasing stag
        
        D liable IF he intended hounds enter OR negligently failed to prevent them
        
        Conarken Group v Network Rail Infrastructure
        
        "non deliberate but negligent incursion" = trespass
        
        if "involuntary and unavoidable" = no trespass
  - - - express/implied permission to be there
    - - e.g. police power of arrest
    - - necessary to enter to preserve life or property
      - e.g. public necessity, go in to stop spread of fire
      - limited, less likely to apply in private necessity - unless entering to save someone
  - - - C MUST have possession
    - - JA Pye v Graham
        
        1) sufficient degree of physical control
        
        factual possession
        
        2) intention to exercise such control on one's own behalf and for one's own benefit
        
        intention to possess
      - e.g. owner of land who lives on it, tenant in occupation
      - w/o possession: hotel guest; spouse, partner, or child living for free in house
  - - - historical: trespass possible to breach peace
        
        protect against intrusion by king:
        Entick v Carrington
        
        Southam v Smout even if cottage so shabby, king cant enter
      - theoretical: trespass vindicates C's property right
        
        should be protect against any infringement
        
        just like trespass to person
        
        different from negligence (provide compensation)
  - - - Senior Courts Act 1980 s 50: court can give damages instead of injunction
    - - 1) Nominal
        
        if C prove trespass, recover nominal damages ET didnt suffer any actual loss
      - 2) Physical Damage to land
        
        C receive amount compensate for the actual physical damage
        
        damage = the value of land been diminished
      - 3) User Damages
        
        when?
        
        unauthorized use
        
        no diminution in land value, but loss suffered by being kept out of possession
        
        Morris-Garner v One Step
        
        general rule: damage should put C in position he was before the tort
        
        "where trespasser made valuable use of C's land, without causing any diminution in value, C entitled to damages measured as what a reasonable person would have paid for the right of the user"
        
        how to calculate?
        
        C and D can negotiate how much D reasonably pay C to use land
        
        hypothetical negotiation b/ C and D
        
        why?
        
        trespass prevents owner from exercising right valuable right to control its use, should be compensate
        
        trespasser takes something for nothing
    - - rarely used
        
        WORK ENDS HERE
      - special procedure, C obtain "order for possession" against person in occupation
- - - - e.g. throw rubbish
    - - e.g. treat branch spread over boundary
  - - - "a condition/activity which unduly interferes with the use or enjoyment of land
      - negligence = conduct based, nuisance = result base
        
        negligence = failure to exercise reasonable care
        
        nuisance = impact of D's action (from C's view)
    - - Hunter v Canary Wharf: "Nuisance is a tort against land"
      - Fearn v Board of Trustees of the Tate Gallery
        
        nuisance = diminution in the utility/amenity value of C's land
        
        NOT personal discomfort to C
        
        e.g. neighbor noisy, can't get damage just for not sleeping, BUT cuz land is affected, worth less
        
        focus on the effect on land NOT on u
    - - Lord Lloyd in Hunter: 3 forms
        
        1) encroachment on C's land
        
        e.g. tree branches
        
        2) direct physical injury to C's land
        
        e.g. factory emits fumes, kill C's plants
        
        3) interference w enjoyment of C's land (intangible nuisance)
        
        e.g. smell, noise, any tort against land
        
        (distinction not super important )
  - - - Examples
        
        Smith v Giddy: Tree overhang C's land
        
        St Helen's Smelting v Tipping: Fume from D's company damage C's trees
        
        D liable - example of property damage
      - "undue interference": General position
        
        much easier to establish undue interference when theres encroachment or physical damage
        
        establish via proving encroachment/damage itself
      - "undue interference": particular issues
        
        1) Character of locality irrelevant
        
        St helen's Smelting v Tipping : neighborhood full of factories
        
        when theres material injury to property, character of locality NOT relevant
        
        character of locality relevant when theres intangible nuisance
        
        2) single one-off event
        
        Can nuisance be committed by single one-off?
        
        Yes - British Celanese v Hunt: foil blown to other's factory, EI had been first time still nuisance
        
        Northumbrian Water v Sir Robert McAlpine
        
        cast doubt on British Celanese
        
        claim for isolated escape UNLIKELY to win
        
        unless use Rylands or escape reasonably foreseeable
        
        Jalla v Shell International Trading & Shipping
        
        D's pipeline oil spill
        
        C claim oil spill was continuing nuisance everyday oil was on C's land
        
        SC: nuisance was not continuing (just assume nuisance can be committed by single/one off event)
        
        Continuing nuisance
        
        Jalla v Shell
        
        SC: leak was one-off event, cause of action did not continue for as long as oil is on land
        
        continuing nuisance = repeated activity by D/ongoing state of affairs that D's responsible for --> continuing undue interference w the use and enjoyment of C's land
        
        this not met in the facts of Jalla
        
        wrong to say course of action continued after remaining on C's land
        
        Delaware Mansions v Westminster CC
        
        Example of continuing nuisance
        
        D's tree caused cracks in C's building
        
        D liable, ongoing state of affairs for which D was responsible & cause continuing interference
        
        unlike Jalla, everyday tree root encroach = new nuisance
        
        3) hypersensitivity of C's use of land
        
        overlaps w eggshell skull in negligence
        
        Robinson v Kilvert: D's heating device damage C's specific paper
        
        No nuisance
        
        if only reason theres damage is cuz of abnormal sensitive activity --> NO damage
        
        BUT if normal paper damaged also, C can recover
        
        McKinnon Industries v Walker: D's emission damage C's orchids
        
        IF D's interference would ONLY damage sensitive plants (i.e. orchids) --> C CANT recover
        
        IF affect ordinary plants --> C CAN recover
        
        you CANNOT recover if only reason damage suffered is the hypersensitive cause
        
        4) Damage
        
        Nuisance by encroachment
        
        Network Rail v Williams: EI encroachment dont cause physical damage, is actionable if interferes w amenity value of land
        
        involves category 1 (encroach) and 3 (amenity value) in hunter
        
        encroachment that affect amenity value = actionable
        
        Nuisance by physical injury to land
        
        NOT every trivial damage
        
        EI actual harm has not occurred, sometimes can get injunction when theres imminent harm
    - - examples
        
        bad smell : Adams v Ursell
        
        Smoke: St Helens Smelting
        
        there are claims abt property damage to plant as well
        
        Excessive noise: Church of Jesus Christ of Latter Day Saints v Price
        
        Shouting outside temple = nuisance
        
        interference w C's enjoyment of church property
      - intangible nuisance = no physical damage
      - interference w use and enjoyment
      - Nuisance can be caused by many means
        
        Fearn: "anything short of direct trespass which materially interferes w C's enjoyment in land CAN be nuisance"
        
        NO requirement of physical invasion to C's land
      - What interests are protected?
        
        Interests NOT protected
        
        Blocking Fine view: AG v Doughty
        
        NO nuisance if view blocked
        
        Bad view? possibly
        
        e.g. prostitute can amount to nuisance
        
        Fearn: US case offensive sight = nuisance
        
        Television reception
        
        NO - Bridlington Relay v Yorkshire Electricity Board
        
        entirely recreational, NOT important part of ordinary enjoyment of property
        
        Hunter v Canary Wharf
        
        NO nuisance for mere presence of building
        
        C claim D's tower interfered w TV reception
        
        HoL left open whether TV reception can be actionable nuisance
        
        result might be different if activity on D's land interferes w TV reception
        
        Network Rail v Morris
        
        D's signalling system interfere w C's recording studio
        
        NO nuisance (interference unforeseeable)
        
        BUT use of electronic equipment = feature of modern day life, part of ordinary u&e
        
        Overlooking
        
        Fearn v Tate Gallery
        
        D has viewing platform, visitors observe C's flats
        
        C seek injunction to close platform
        
        SC: 1) intrusive overlooking CAN be nuisance
        
        BUT some overlooking is normal
        
        SC: 2) D is liable in this case
        
        D's platform was exceptional use
        
        amount to substantial interference
        
        Ability to sell property at market value
        
        CANNOT sue if fall in value is ONLY damage
        
        Network Rail v Williams (japanese knotweed)
        
        C suffered interference w use & enjoyment of land
        
        knotweed interfere w amenity value NOT cuz it reduce market value BUT cuz it impose immediate burden on landowner (making more difficult and costly to develop land)
        
        purpose of nuisance NOT to protect property as financial asset, but EP w use & enjoyment
        
        these burden from knotweed impose risk of physical damage + process to remove very costly
        
        Davies v Bridgend CBC (another knotweed)
        
        japanese knotweed spread from D's land
        
        1) no actionable nuisance if simply diminishes value (thats pure econ loss)
        
        2) actionable nuisance = interference w C's enjoyment or amenity of land due to physical encroachment of knotweed
        
        SC reversed based on causation
        
        would diminution in value of C's land occurred "but for" D's nuisance
        
        here NO but for causation, diminution value would have occurred anyway
      - Undue interference
        
        try to strike balance b/ conflicting rights of neighboring landowners
        
        ONLY those undue = actionable
        
        1) whats undue?
        
        SUBSTANTIAL
        
        assessed objectively by standards of ordinary person in C's position
        
        intensity, duration, timing
        
        Bamford v Turnley: duration was significant
        
        interference w ordinary use of C's land
        
        reciprocity between neighbors
        
        1) if C use of land not ordinary, C cannot complain
        
        2) if D use of land ordinary, C cannot complain
        
        even if theres substantial interference, no nuisance if its just ordinary use
        
        D's act is necessary for ordinary use of land
        
        D's act is done with proper consideration for neighboring occupiers
        
        Southward London Borough Council v Tanner
        
        ordinary use CANT be nuisance
        
        2) Implication of lord leggatt's analysis in Fearn
        
        Scenario 1: D common, C common --> No liability
        
        Scenario 2: D common, C NOT common --> No
        
        Scenario 3: D not common, C common --> Yes
        
        still need to show substantial
        
        Scenario 4: D C both not common --> maybe
        
        Hollywood Silver Fox v Emmet
        
        3) what happened in Fearn
        
        Substantial + C ordinary use
        
        Interference = Substantial
        
        D not ordinary, C ordinary
        
        fall into scenario 3
        
        2) no burden on C to avoid nuisance
        
        1) If D's use not ordinary, no defense to say that C's flat is sensitive
        
        3) SC remedy - injunction to close platform
        
        4) Causation against describing interference as "unreasonable" or referring to test of "reasonable user"
        
        before Fearn the test is whether unreasonable interference w C
        
        Lord Leggatt: unreasonableness not a test
        
        D's use of land is reasonable ≠ no nuisance
        
        against the term "reasonable user"
        
        Minority: Lord leggat was just focusing on whether D's use was common
        
        might place whole burden on D
        
        might prioritize only common use of land
        
        basically telling developer if u build common land youll be fine
      - Undue interference: particular issues
        
        1) mere presence of building NOT nuisance
        
        Hunter v Canary Wharf
        
        2) character of locality
        
        General rule: Sturges v Bridgman
        
        Example
        
        Thompson Schwab v Costaki
        
        qualification
        
        Polsue & Alfieri v Rushmer
        
        character of locality ≠ cant complain
        
        when theres physical damage
        
        St helens smelting v Tipping - locality irrelevant
        
        property damage more important, excluding trivial claims etc
        
        property damage --> irrelevant, but intangible nuisance --> relevant
        
        3)Coming to nuisance NOT a defence
        
        Sturges v Bridgman
        
        D was there first, still liable
        
        Miller v Jackson
        
        cricket club there first NO defence
        
        Coventry v Lawrence
        
        C bought house next to motorcycle race track, --> nuisance
        
        1) no change in C's use of land
        
        coming to nuisance NOT defence
        
        2) change in C's use
        
        D's preexisting activity = locality
        
        D MAY not be liable
        
        prevent freezing land development
        
        If D been there for long, invested
        
        4) Whether C's use is abnormally sensitive
        
        C cant complain if interference will NOT troubled ordinary use
        
        Robinson v Kilvert: Brown paper
        
        Fearn: reaffirm principle of abnormal sensitivity, just not apply to Fearn
        
        5) D's malicious conduct
        
        Christie v Davey
        
        Hollywood Silver fox v emmet
        
        Bradford corp v Pickles
        
        D deprived C of percolating water
        
        NO nuisance
        
        dealing w non-right - right to abstract water unprotected by nuisance
        
        6) Effect of planning permission
        
        no effect
        
        but may be damage in lieu of injunction
        
        7) Irrelevance of public interest
        
        AG v Birmingham
        
        Council liable for nuisance by discharging sewage, ET in public interest
        
        Miller v Jackson
        
        public interest of playing cricket < C's interest
        
        but relevant to remedies - C got damage in lieu of injunction
        
        Dennis v Ministry of Defence
        
        nuisance despite public interest in training pilots
        
        Fearn
        
        public interest not a defense, only relevant when deciding remedies
        
        why? C should not pay for it
  - - - Active: activity carried out by D
      - Passive: 1) stranger, 2) acts of nature
        
        Acts of stranger
        
        **Sedleigh v Denfield**
        
        1) Continues: fails to end it
        
        2) adopts: make use of it
        
        D both fail to clean ditch + use ditch for his own purpose = liable
        
        standard of care partly subjective
        
        Lambert v Barratt Homes: resources of D considered
        
        Acts of Nature
        
        Rule: Goldman v Hargrave
        
        D under duty to take reasonable step to extinguish fire
        
        lightening struck D's land, fire spread to C
        
        Leakey v National Trust
        
        D's hill slipped due to nature forces
        
        affirmed goldman
        
        standard of care partly subjective
        
        consider resources of occupier
        
        different from negligence (nettleship use objective test)
        
        cuz in negligence u choose to do somthing, in passive nuisance D has no choice
        
        "measured" duty of care
        
        D has liability for pure omission
        
        Application of rule
        
        Holbeck Hall Hotel v Scarborough
        
        Hotel on cliff, collapsed
        
        D NOT liable, risk not foreseeable
        
        Statutory scheme
        
        Marcic v Thames Water
        
        C could NOT circumvent statute by nuisance
        
        Manchester Ship Canal v United Utilities Water
        
        Statute does NOT prevent C from suing nuisance
        
        1) pollution = nuisnace
        
        2) common law remedies available unless D acts within statutory power/immunity
        
        Act did not authorize nuisance + not immune
        
        distinguished Marcic
        
        here C claim actionable in tort independent from statute
    - - active: undue interference w C's use and enjoyment of land
        
        liability without fault
        
        only question = interference is undue
      - passive nuisance: similar principle but with subjective standard of care
        
        consider occupier's resources
    - - D liable only for reasonably foreseeable types of loss
      - wagon mound
        
        engineer of D's ship bring oil, oil ignite
        
        D liable
        
        reasonable person would foresee risk
        
        in nuisance and in negligence
      - Cambridge Water v Easter Countries Leather
        
        foreseeability is prerequisite
- - - - Lippiatt v South gloucestershire
        
        local council did nothing when bad traveller squat land
  - - - letting property where there is high probability of nuisance
        
        Coventry v Lawrence
        
        1) doing nothing ≠ participation
        
        2) landlord mitigate nuisance = he did not authorize it
        
        3) nuisance not inevitable consequence of letting
    - - Hussain v Lancaster
        
        C harrased by D's tenants, D NOT liable
        
        distinguished lippiat: landlord can easy remove licensee, but cant remove tenant
      - landlord --> limited liability, does not have control of property
      - occupier --> in control of property,
- - - - Act conferred statutory immunity
  - - - failed
- - - - damage compensate for reduction in amenity value
        
        its tort against land
      - not for personal discomfort
      - intangible nuisance:
        
        Actual impact is practical guide
        
        doesnt matter number of ppl on land
    - - Yes - damage to C's chattel (e.g. livestock)
        
        but has to closely connect to land
      - Yes - consequential loss of profit
        
        Dennis v Ministry of defence
      - NO - pure economic loss
        
        D Pride & Partners v Institute for Animal Health
      - NO - personal injury
  - - - favor damages
      - Arguments for injunction
        
        1) if damage, basically D buying nuisance
        
        2) inadequate protection for C
        
        3) court not competent, should let parli
      - in favor of damage
        
        some nuisance has public interest
        
        WORK ENDS HERE