ENTICK v CARRINGTON

In a time following the great revolution, it was taken by some occupying ministerial roles that powers typically reserved for the King and courts, were equally applicable to his immediate servants, including the right to issue warrant against those deemed offensive to the Crown, and that might seek to usurp its position through libellous acts.

Hence, when a number of gentlemen formed a ‘newspaper’, they were eventually seen to be acting with defamatory intent, when after the publication of certain articles, a warrant for the seizure of the original works was issued by the Earl of Halifax, who was acting Secretary of State.

The officers despatched were told to include the presence of a police constable; however, they chose to act alone and used force to enter the claimant’s home, before causing significant damage to his property when searching for the relevant documentation; while the second part of the warrant required that they brought the claimant and his papers before the Earl himself, so that they could be examined and the author held to account.

For clarity, prior to the revolution there had been many abuses of power by those so appointed; and so, the reemergence of the rule of common law had sought to prevent these flagrant ignorances in favour of equity and the rights of the citizens of the state.

Yet, when the claimant sought relief for the damages caused, it was argued by the defendants that the Secretary of State reserved the right to execute warrants in the interest of the Crown; and that the defendants were beyond reproach when acting under the rights contained within the Constables Protection Act 1750.

Brought before the court, it became clear that despite statute conferring certain protections against those undertaking certain duties under the instruction of the Crown, there was no evidence to support either the Secretary of State or the officers assigned, until it could be proven that the former was legally entitled to issue warrants.

It was also evident that no police constable had accompanied the defendants as was requested, and that the evidence gathered was then presented to an employee of the Earl and not the issuer himself, who held no powers of delegation in such circumstances.

To further add insult to injury, it was also apparent that the man accused was not even responsible for the libellous comments; and so, the whole affair constituted nothing more than trespass and criminal damage.

Having closely evaluated the limitations imposed upon the Secretary of State, it was agreed by the presiding Chief Justice that at no point in time had it been assumed that the post included magisterial or advisory rights other than to act within matters of high treason, which supported their service as protectors of the public and the state.

This translated that the Earl had acted well beyond his remit, and that any warrant was now void and unenforceable at law.

Hence, with due consideration for the first point it followed that the officers had been acting under illegality, and were therefore guilty of trespass and breaking and entering, and so award was granted in favour of the claimant, while reminding the court that:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground he must justify it by law.”

SHEVLIN-CARPENTER CO. v. STATE OF MINN.

The constitutionality of statute drafted and designed to preserve the interests of a State, coupled with the presumption that such laws are irrelevant to the needs of commerce, provide the basis of a case, where those later prosecuted, are left arguing that word of mouth is sufficient grounds upon which to acquire property.

Having operated as a timber merchant under State licence, the plaintiff in error corporation found themselves in need of a second licence extension, following the recent expiration of their previous reissue.

And so, instead of applying through the proper channels, chose to rely upon verbal declarations of State officials as to their ability to continue removing trees from government land.

For clarity, at the time of the offence § 7 of the Laws of Minnesota 1895 stated that:

“If any person, firm or corporation, without a valid and existing permit therefor, cuts or employs, or induces any other person, firm or corporation to cut, or assist in cutting any timber of whatsoever description, on state lands, or removes or carries away or employs, or induces or assists any other person, firm or corporation to remove or carry away any such timber, or other property, he shall be liable to the state in treble damages, if such trespass is adjudged to have been willful; but double damages only in case the trespass is adjudged to have been casual and involuntary….”

And so, when the plaintiff in error’s activities were discovered, the defendant in error brought charges in the District Court of St. Louis County on grounds of wilful trespass, thus claiming treble damages as prescribed.

Here, the court found for the defendant in error and awarded damages of around $44,000, whereupon the plaintiff in error challenged the judgment in the Minnesota Supreme Court, who upheld the judgment, while holding that:

“The Legislature may declare that a willful trespass upon the lands of another shall constitute a criminal offense and fix the limits of punishment therefor, either by fine or imprisonment, or by compensating the injured party in damages to be recovered in a civil action, or by both, as its judgment may dictate.”

After which, the plaintiff in error appealed on grounds that it had acted in good faith and reliance upon the statements made by those with apparent authority, while in response the court referred to State v. Shevlin-Carpenter Co., in which it had earlier held that:

“Where the defendant is a willful trespasser, the measure of damages is the full value of the property at the time and place of demand; but, if he is only an unintentional or mistaken trespasser,-that is, where he honestly and reasonably believed that he had a legal right to take the property,-then the measure of damages is the value of the property at the time and place and in the condition it was taken.”

State v. Shevlin-Carpenter

Before partially reversing their previous judgment and remanding the matter back in keeping with a significant reduction in damages, thus the plaintiff in error challenged the decision under writ of error in the U.S. Supreme Court, on grounds that the statue was violative of the Fourteenth Amendment to the U.S. Constitution when denying due process, and that as such, no damages were due.

Having reexamined the facts and constitutional argument, along with the right to protect State property through appropriate statute, the Court reasoned that at no point was the questioned legislation hidden from view, nor remotely difficult to understand, while also noting that at no point in history had trespass ever been considered a harmless act.

In closing, the Court also noted that despite the harshness of its construction, the State had proscribed the offence within constitutional bounds, and were therefore sound in their enforcement; after which, it upheld the previous judgment in full, while holding that:

“[I]nnocence cannot be asserted of an action which violates existing law, and ignorance of the law will not excuse.”

CHARRINGTON v SIMONS & CO. LTD

The conveyance of land with restrictive covenants is not uncommon within property law; however, when the safeguard designed to protect the needs of the vendor becomes central to his anguish, it becomes clear that the attached principles have become somewhat misused.

In a matter concerning the part-sale of an orchard by a farmer, the respondent entered into the purchase on the understanding that at no point was the road running between the two plots previously owned, to exceed the height beyond that of the section retained, as to do otherwise would impact upon the farmer’s ability to harvest his remaining plot.

After ignoring the covenant, the respondent began resurfacing the road to a height that did in fact exceed the permissions granted, thus prompting the appellant to protest both orally and by letter.

When the work continued and his obvious displeasure went unheard, the appellant issued a writ in pursuit of a mandatory injunction, which would result in the removal of all works undertaken at cost to the respondent.

In the first hearing, the judge adopted the unorthodox position of taking two negatives in order to create a positive. This was executed through an injunction, while explaining that:

(i) The respondent was to modify the road so as to benefit the appellant, rather than to remove it outright, after having spent around £1400 on its construction, before paying the appellant £1062 in special damages for the harm caused to date.

(ii) The mandatory injunction was to remain ineffective for a period of three years, while the respondent set about altering the road’s layout, which itself required agreement by the appellant to trespass onto his land in order to carry out the work.

(iii) That consultation between the two parties would continue throughout this period, and that should the appellant refuse to consent to the needs of the respondent, the respondent would be granted sufficient argument so as to discharge the injunction entirely.

Upon immediate appeal, the appellant argued that the judge had erred in law when creating an injunction that rendered the breach of covenant void, that requirement to consent to the work would result in a trespass, and that such an impingement and modification would cause the appellant to suffer both personally and financially, as his own orchard would be compromised during the alterations.

With consideration of the judge’s genuine wish to improve upon an already damaging situation, the Court held that when refusing to enforce the injunction with immediate effect, the court had failed to properly address the purpose of the covenant and the injunction in favour of an outcome serving only the needs of the breaching party.

Hence, the appeal was upheld while the court reminded the parties that:

“[T]the judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff’s land which must lead to greatly increased harm to his business, as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution.”

TRESPASS

To clarify, there are two types of trespass, namely trespass to the person and trespass to land; and so here we will begin by looking at trespass to the person.

Trespass to the person
Trespass to the person includes three torts, ranging from (i) battery (ii) assault and (iii) false imprisonment, as first truly defined by Goff LJ in Collins v Warlock when he said:

“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.”

Collins v Warlock

(i) Battery
While claiming accidental causes, the defendant in Williams v Humphrey was found liable for battery after pushing the victim into a swimming pool, whereupon the claimant broke his ankle. Given that the intention to push the victim was present, no argument to the contrary could reasonably stand and so damages were awarded.

(ii) Assault
In R v Ireland, a number of women subjected to continuous psychological damage through repeated abusive phone calls, were given the right to claim for assault, even though they never met the defendant in person. When reaching summary judgment, it was remarked by Hope LJ that:

“If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context.”

R v Ireland

(iii) False Imprisonment
While reminiscent of physical imposition, this tortious facet involves the restriction of liberty and movement of an individual, while as many might expect, there are cases where over extension of a prison sentence will suffice, however mere isolation or deprivation of escape will also apply.

It is important to note that while the victim may only fear these actions yet not necessarily fall subject to their physical consequences, psychological harm, where proven, will suffice under a claim.

Unlike the tort of negligence, trespass to the person relies upon intention, actual harm and obvious effect, and so victims are compensated not for unintentional damage, but that caused with deliberation.

Trespass to land
Similarly, trespass to land addresses deliberate actions by those subject to it, while primary focus is placed upon the protection and preservation of land or property.

Harm is treated as one stemming from interference with a right to privacy and occupation, and so while possession of the land is imperative to a successful claim, there are (as with trespass to the person) four distinct categories of interference, namely (i) crossing a boundary, (i) remaining on land, (iii) exceeding permissions associated with land and (iv) placing objects upon land without express consent of the owner.

(i) Crossing boundaries
Undoubtedly the more common complaint is one of boundary violation (see Entick v Carrington), and while often focussed upon overgrown foliage or other such matters, there are also incidents where property intrudes into the airspace of land.

As an example, in Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd where a contractor’s crane overswung into a neighbouring property, thus prompting a supported claim for trespass through ‘airspace’.

(ii) Remaining on land
In Jones v Persons Unknown, the freeholders of unregistered land were forced to serve eviction notices after a group of ‘fracking’ protestors set up residence and refused to leave. While claiming to be protecting the land on which they had become entrenched, the defendants were ultimately evicted under the award of a possession order on grounds of trespass.

When outlying the justification for the order, the judge remarked:

“[T]here is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back…he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings.”

Jones v Persons Unknown

(iii) Exceeding permissions (trespass ab initio)
When a party enters owned land under agreement, but then proceeds to potentially outstay that welcome through unlawful or abusive actions, the owner is entitled to claim trespass from the point at which the visitor caused offence.

In a case called The Six Carpenters, a number of carpenters entered an inn before ordering and paying for wine and bread; however, things took a turn for the worse when after ordering more wine they refused to pay for it; thus instigating a unsuccessful claim for trespass damages by the landlord when the court held:

“[F]or not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio…”

The Six Carpenters

(iv) Placing objects
In Arthur v Anker, the deliberate placement of an oil tanker and flower pots along a boundary wall caused tensions between neighbours, until a claim for trespass led to an injunction to remove the objects, despite several months between their placement and the litigation.

In surmising the judgment, Aldous J emphasised that:

“[T]here is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr. Stones to believe that he could maintain the tank on the wall situated as it is…He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.”

Arthur v Anker
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