8. Torts Affecting Immovable Property — Overview
This is the overview of the second group of specific torts in Law of Torts, Unit 3 — Specific Torts and Motor Vehicle Accidents. It covers the torts that protect a person's land and the use of it: trespass to land and nuisance. The two are easy to confuse. This post shows what each protects and how to separate them.
The Problem This Topic Solves
Land can be interfered with in two very different ways. A person can walk onto it, dump material on it or refuse to leave it. Or something can happen next door, such as smoke, noise, fumes or a foul smell, that makes the land unpleasant or unusable without anyone setting foot on it. The law gives a separate tort for each kind of interference, because the rules on what the plaintiff must prove are different.
Examination questions often give a set of facts about land and ask which tort applies. The answer depends on one question: did the defendant, or something the defendant put there, physically cross the boundary (trespass), or did the effects of an activity on the defendant's own land reach the plaintiff (nuisance)? This overview sets out that test and the rest of the group.
The Group at a Glance
The table below compares the two Notes in this group.
| Point | Trespass to land | Nuisance |
|---|---|---|
| What it protects | Possession of land | Use and enjoyment of land |
| Nature of interference | Direct: physical entry or intrusion onto the land itself | Indirect: noise, smell, smoke or vibration that crosses onto the land |
| Proof of damage | Not required; actionable per se | Generally required: actual damage or substantial discomfort |
| Who can sue | The person in possession, even a tenant or licensee with exclusive possession | Private nuisance: the affected person. Public nuisance: ordinarily the Attorney-General or State, unless special damage is shown |
| Leading authority | Entick v. Carrington (1765) | St Helens Smelting Co. v. Tipping (1865); Attorney-General v. PYA Quarries Ltd. (1957) |
Trespass to Land
Trespass to land is any direct, unjustifiable interference with land in the possession of another. It protects possession, not ownership, so a tenant or licensee in exclusive possession can sue. The essentials are a direct interference, interference with possession, and a voluntary, intentional or negligent act.
Trespass takes several forms: entering in person, remaining after permission has ended, placing or projecting objects onto the land, and intruding into the airspace above or the subsoil below. Under the doctrine of trespass ab initio, an entry made under authority of law becomes unlawful from the start if the entrant later commits a positive wrongful act. In Entick v. Carrington (1765), Lord Camden CJ held that no unauthorised entry onto another's land is justified without actual legal authority, however minor the intrusion.
The defences are lawful authority, necessity, licence, and a legal right of way or easement. The remedies are damages, an injunction, reasonable re-entry or self-help, and an action for mesne profits. Full study: Trespass to Land.
Nuisance — Private and Public
Nuisance is an unlawful, indirect interference with the use or enjoyment of land. Private nuisance needs a substantial interference that is unreasonable in the circumstances and causes damage, which may be physical or, for discomfort, judged by the standard of an average person. In St Helens Smelting Co. v. Tipping (1865), the House of Lords held that where there is material damage to property, the character of the locality is not a defence. Locality matters only for claims of mere personal discomfort.
Public nuisance affects the public or a class of it and is normally actionable only by the Attorney-General or the State. A private person can sue only on proof of special damage. In Attorney-General v. PYA Quarries Ltd. (1957), the Court of Appeal held that it is enough to show that a representative cross-section of the class was affected.
The defences are prescription (twenty years of open, continuous, uninterrupted nuisance) and statutory authority. Reasonable care, the combined acts of several persons, and the plaintiff "coming to the nuisance" are not defences. The remedies are damages, an injunction and abatement. Full study: Nuisance — Public and Private.
How to Tell Them Apart
The decisive question is whether the interference was direct or indirect. If the defendant, a thing the defendant threw or placed, or a structure crossed the boundary, the tort is trespass. If an activity on the defendant's own land produced consequences that drifted onto the plaintiff's land, the tort is nuisance.
Proof also differs. A trespasser is liable even if nothing was damaged. A nuisance claim usually fails unless the plaintiff shows real damage or substantial discomfort.
| Facts | Tort | Reason |
|---|---|---|
| A neighbour walks across your garden without permission | Trespass to land | Direct entry; no damage needed |
| A guest refuses to leave after you withdraw permission | Trespass to land (by remaining) | Licence ended; continuing presence is a direct interference |
| A factory next door emits fumes that kill your trees | Private nuisance | Indirect interference with damage; locality is no defence |
| A quarry spreads dust over the whole neighbourhood | Public nuisance | Affects a class of the public; Attorney-General sues unless you show special damage |
- Trespass to land is a direct, unjustifiable interference with land in another's possession and is actionable per se.
- Nuisance is an unlawful, indirect interference with the use or enjoyment of land and generally needs proof of damage or substantial discomfort.
- Trespass protects possession, not ownership.
- Entick v. Carrington: no entry is justified without actual legal authority.
- St Helens v. Tipping: locality is no answer to material damage to property.
- A private person can sue for a public nuisance only on proof of special damage.
- The same facts can sometimes support both torts, so a problem answer should take trespass and nuisance in turn and say which fits better.
- Statutory authority is a defence to nuisance only when the nuisance is the inevitable result of an authorised act done with due care.
- Coming to the nuisance, meaning moving in after the activity began, is not a defence.
A Practical Example
A runs a stone-crushing unit on his own plot. Dust drifts onto the adjoining orchard of B, covers the fruit and kills several trees. No worker or machine ever enters B's land. This is nuisance, not trespass, because the interference is indirect. B can claim damages for the lost trees and an injunction, and it is no defence for A that the area is industrial.
Later, a worker of A chases a stray dog and runs through B's orchard to get it back. B did not allow this. The worker has directly entered B's land, so this is trespass. B can sue without proving any damage, though the damages will be small if nothing was harmed.
Quick Revision Points
- Two torts protect land: trespass to land and nuisance.
- Trespass: direct interference with possession; actionable per se; Entick v. Carrington (1765).
- Nuisance: indirect interference with use or enjoyment; generally needs damage; St Helens v. Tipping (1865).
- Public nuisance: Attorney-General or State sues, unless a private person shows special damage; PYA Quarries (1957).
- Defences to nuisance: prescription (20 years), statutory authority. Not defences: reasonable care, combined acts, coming to the nuisance.
- Trespass remedies: damages, injunction, re-entry or self-help, mesne profits.
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