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A.

Trespass to Land
Trespass to land is the unreasonable interference with anothers possession of land.
Section 5 of the NLC provides that land is (the surface of the earth and all
substances forming that surface); (the earth below the surface, and all substances
therein); (all vegetation and other natural products on or below the surface); (all
things attached to the earth or permanently fastened to the earth on or below the
surface); and( land covered by water).
Section 44(1)(a) of NLC provides that a person has the right to exclusive use and
enjoyment of the land as is reasonably necessary to the lawful use and enjoyment of
the land.
In Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor, the court held that trespass is
actionable per se, a Pf need not to prove damage.
In Beatrice Ramanathan (f) & Anor v Shah Alam Properties Sdn Bhd & Anor, it was
held that where actual damage is incurred, then the prima facie measure of damages
for all torts affecting land is the diminution in value to the Pf, or in the case of a Pf in
possession with full ownership, the cost of reasonable reinstatement of the property.
The object of the measure of damages is to put the Pf in the position he would have
been in if the tort had not occurred, and sometimes a combination of the 2 measures
of damages mentioned is required. The 1st measure is obtained by taking the capital
value of the property in its undamaged state and to compare it with its value in the
damaged state, the Pf being entitled to the difference. The 2nd measure involves taking
into account the cost of repair or reinstatement.

Person Who May Claim


Trespass is an injury to possessory right. Thus, who has exclusive possession over the land at
the time of the trespass may claim. The landlord can also be sued by the person who has
exclusive possession if the landlord wrongfully enters the premises which is in his possession
as per the case of Ismail v Haji Taib. However, the landlord cannot sue his lawful tenant as it
is the tenant who has possession as in Abdul Muthalib bin Hassan v Maimoon bte Haji Abd
Wahid. If the landlord can prove that the tenant or a 3 rd party has causes permanent injury
which will damage his reversionary interest, he may maintain an action even he is not in
possession at the time. In Cheong Kee Teck v Quah Hoay Kwan & Ors, the court held that
when a land is not in possession of any persons, the person with the title may claim.

Types of Possession
1. Possession in fact and jus tertii
A Pf who has possession in fact may bring a claim against everybody, except another
who has possession in fact or possession in law or the right to immediate possession.
A Df cannot raise the defence of jus tertii as against another who has possession in
fact, unless the Df acted under the instruction of a 3 rd party who has a better right to
possession than the Pf.
In Senik v Hassan & Anor, the Df planted rubber on State land in Kedah without
permission to cultivate the land and further, without having any title over it. The Df
left the Pf into possession of the land, as consideration for a favour done by the Pf for
him. The Pf had tapped the rubber for 18 months, when the Df gave notice to him to
vacate. The Df in fact dispossessed the Pf of the land before the notice expired. The Pf

sued for trespass. Df liable as he couldnt show a better right to possession in himself.
The court held that trespass is an injury to possessory right. Thus, as long as there is
clear and exclusive and exercised with the intention to possess, is sufficient to support
the action for trespass. Actual possession is good against all except those who can
show better right of possession in themselves.
2. Possession in accordance with the law
In Delaney v Smith, the Df agreed to let his house to the Pf after repairs were
completed. After the said repairs, the Df changed his mind and wanted to sell his
house instead. The Df informed the Pf of his change of mind in a letter. The Pf got
hold of the house key and moved in whereupon the Df forcibly ejected him. The court
held that the Pf as tenant, had possession in fact. This possession was held to be
sufficient to enable him to bring an action against anyone causing any interference,
but was not sufficient to successfully bring an action against the Df, who has
possession in law.
3. The right to immediate possession (trespass by relation)
If an interference occurs before the Pf takes possession, but after he has the right to
immediate possession, he may sue for trespass committed between the date of accrual
of his right and the date of entry once he has entered upon the land. The law presumes
that the possession and all rights attached thereto arise at the time when he should
have possession.
In Yip Shou Shan v Sin Heap Lee Marubeni Sdn Bhd, the Df who had carried out
development works on its land and had physically damaged the Pfs nearby land in
the process. The court held that even though the Pf became the registered proprietor

on July 27, 1991, and took physical possession on July 18, 1991, he was entitled to
possession on June 29, 1991 when he settled the balance of the purchase price. Thus
his right of entry accrued on June 29, 1991. The Df then appeal, so the latter case of
Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan. The CoA affirmed the decision by
the trial judge.
4. Co-owners
In Ong Hoo Hong v Kong Yin Wen, the court held that one co-owner of land can only
bring an action of trespass against the other if he has been actually ousted or
dispossessed of the land. Each co-owner is entitled to possession of the whole land, so
that if one turns the other off the land or part of it, it is a trespass.
5. Possession under a temporary occupation licence
In Julaika Bivi v Mydin, there were 2 temporary occupational licences over a house on
a piece of land. When the Pf, the holder of the 2nd licence moved onto the land, the Df
was still in occupation of the land even though the first licence which allowed him to
stay has been revoked. The court held that a holder of a Temporary Occupation
Licence may maintain an action for ejectment in tort against a trespasser.
In Mohamed Said v Fatimah, the Pf was the holder of a TOL which expired on
December 31, 1960 and the licence was only renewed on July 5, 1961. The Pf brought
an action against the Df on May 6, 1961. The court held that the Pf did not have
possession at the time of the action and therefore did not have the right to claim.
In Wong See Kui v Hong Hin Tin Mining Co, the Pf held a TOL over a fish pond. The
Df was a mining company and had a licence to mine on the land beside the pond
which required the Df to channel the tailings into the pond. Thus both parties had

possession over the pond. The Pf alleged that his fish died when the Df pumped the
mining tailings into the pond. The court held that both parties had concurrent
possession, and thus there was no interference.

Elements of Trespass to Land


1. The mental state of the defendant

This element may arise in 3 situations:


i.

There exists an intention to trespass;


In Basely v Clarkson, the Df accidentally mowed the Pfs grass whilst he was
mowing his own grass. The court held the Df liable as the act of mowing the
grass was a voluntary act, and therefore done with intention. An act done
under a mistake is not necessarily an involuntarily act. A mistaken action may
be a voluntary action and therefore intentional.

ii.

The act of entry is done voluntarily;


In Conway v George Wimpey & Co Ltd, the court held that a deliberate entry
onto the land is sufficient. It is irrelevant that the Df does not know that he is
entering the Pfs land, or that he believes the entry is authorised, or that he
honestly and reasonably believes that the land is his.
In Smith v Stone, the Df was brought onto the Pfs land without his consent.
The court held that the Df was not liable but the person who brought him in
was liable for trespass as the Dfs entry was without his consent and is
involuntary.

In Gilbert v Stone, the Df entered the Pfs land under duress. The court held
that since the act of entry was intentional, the Df was liable. (What if this is his
only choice? The person who put him in such position should be liable instead
of him.)
iii.

The interference to the Pfs land is a foreseeable consequence of the Dfs


act or omission.
In League Against Cruel Sports Ltd v Scott, the court held that a master of
hounds may be held liable for trespass if he either intended that the hounds
should enter the land or by negligence he failed to prevent them from doing
so. Knowledge that there is a real risk that hounds may enter or cross
prohibited land or a failure to exercise proper control over them is tantamount
to having intention.

2. Interference

4 factors which may give rise to an action of interference:


i.

Entering upon land in the possession of another;


In Hickman v Maisey, Pf used his land to train horses. The Df used the road
across the Pfs land to spy on Pfs horses. The court held the Df liable as he
was not using the road for its purposes, which was to cross over to the other
side of the land.
In Harrison v Duke of Rutland, Pf used his land for shooting birds. The Df
entered the Pfs land through usage of the highway and tried to get rid of the
birds. The court held that unreasonable use of a highway would amount to
trespass as against the person in position of the subsoil.

In Janaki & Anor v Cheok Chuan Seng & Ors, the Dfs were liable in trespass
as they entered the Pfs land, in complete disregard of the Pfs right of
property, dredged existing canals, widened and deepened an existing drain on
the land.
In Tan Wee Choon v Ong Peck Seng & Anor, the Dfs always used a path on the
Pfs land as access to their house, were not able to use the path when the Pf
bought the land and fenced the area. The Dfs brought the fence down. The
court held that trespass to land is actionable per se, and did not require proof
of damage.
ii.

Remaining on the Pfs land (continuing trespass, a new cause of action


from day to day as long as it lasts)
In Holmes v Wilson, the Df had built buttresses on the Pfs land for the
purpose of supporting a road. The Df had already paid compensation to the Pf
but was nonetheless found liable for not removing the buttresses.
In Konskier v Goodman Ltd, the Pf rented a house from his father. Before the
tenancy, the Dfs was allowed by the Pfs father to pull down the chimney
stack of the Pfs house. The court held the Dfs liable as they failed to remove
the debris as a result of their repair work upon the permission to enter has
ceased.
In Clegg v Dearden, the court held that continuing trespass applies only to the
failure to remove things that have been wrongfully left on the land. It does not
extend to failing to restore the land to its original condition. So where the

trespass has caused damage to the land, it does not continue simply because
the damage has not been repaired.
In Cheah Kim Tong v Taro Kaur, the Dfs house encroached onto the Pfs land.
The court held that this was a case of continuing trespass and therefore a new
cause of action arose from day to day and this cause of action is actionable per
se.
iii.

Entering or placing an object on the Pfs land


In Westripp v Baldock, the court held that placing a ladder against anothers
wall constitute a trespass.
In Lavender v Betts, the court held that removing doors and windows
belonging to another amounted to trespass.
In R v Khan, the court held the Df liable of trespass for fixing a surveillance
device on somebodys house.
In Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor, the court
held that dumping soil onto the Pfs land is trespass.

iv.

Interference to airspace
In Kelsen v Imperial Tobacco Co Ltd, the court held that a signboard
encroached eight inches into the Pfs airspace is a trespass.
In Wandsworth Board of Works v United Telephone Co, the court held that an
unauthorised telephone wire above the Pfs land constituted trespass to the
airspace.

In Lord Bernstein of Leigh v Skyviews and General Ltd, the court held that the
Dfs act of taking pictures of the Pfs premises from the air was not a trespass
as the rights of a landowner to the airspace above his land is limited. The land
owners rights in the airspace is restricted to a height as is necessary for the
ordinary use and enjoyment, and above that height he has no greater rights in
the airspace than any other member of the public.
If interference to land is caused by an aircraft, a Pf may invoke the provision
of s19 of the Civil Aviation Act 1969. Section 19 provides that the owner of
the aircraft which taking off or landing to any person or property should be
responsible to recover the loss or damage caused regardless the act was done
intentionally or negligently. Mean that this section gives rise to strict liability.
The significant different between trespass to land and section 19 of CAA is
that trespass is actionable per se but s19 need the Pf to prove that he has
sustained some damage. Thus, a person who suffered damage to his land
arising from the handling of an aircraft can either sued under trespass or s19.
Defences
1. Statutory duty
The local authority may escape liability on the grounds that it was only carrying out
its function under the relevant provision of the particular statute.
In Azizah bte Zainal Abidin & 5 Ors v Dato Bandar Kuala Lumpur, a department
under the Df local authority undertook works to channel a river which ran along and
inside the boundary of the land belonging to the Pfs. The work was to alleviate floods
along the river. As a result of the works, the river was widened and devoured over

2,000 square feet of the Pfs land. The court held that the Dfs entry onto the Pfs was
lawful by virtue of S53(1) of the Street, Drainage and Building Act 1974 as there were
carrying out their statutory duty of repairing, maintaining or improving any
watercourses under their control.
2. Easement
An easement means any right granted by one proprietor to another, such right being
for the beneficial enjoyment of the others land.
In Re Ellenborough Park, 4 essential characteristics of an easement had been laid
down. 1st, there must be a dominant and servient tenement. 2nd, the easement must
accommodate the dominant tenement. 3rd, the owners of the dominant and servient
tenements must be different person and 4th, a right over land may only amount to an
easement if it is capable of forming the subject matter of a grant.
An easement must be registered in accordance with the NLC 1965, it gives rise to a
legal interest in land and is binding on 3rd parties taking form the proprietor of either
the servient or dominant land.
An equitable easement can also be raised as a defence. In Alfred Templeton & Ors v
Low Yat Holding Sdn Bhd, the court held that on grounds of necessity, a contractual
obligation was implied in the agreement between the Pfs and the Df, that when the
former sold parts of their land to the latter, the latter would continue to allow the
former a right of way as otherwise the Pfs land would be land locked and sterile.
3. Acquiescence
Acquiescence means agreement or consent. In Kwong Hing Realty Sdn Bhd v
Malaysia Building Society Bhd, the court held that in order that this defence is raised

successfully the Df must show that the Pf had knowledge of the state of affairs on the
land and had agreed or consented to such state of affairs.
4. Denial of possessory title
Trespass is essentially an interference with possessory rights as opposed to ownership.
Registered ownership does not necessarily connote actual possession. Thus to deny
the possessory title of the Pf which must be specifically pleaded would be a proper
defence to trespass.

B. Trespass Ab Initio
In Six Carpenters case, the court held that the Df enters the Pfs land under the
authority of the law or a license but he later abuses this right of entry, he will be
treated as a trespasser ab initio, as though he had trespassed from the beginning, even
though his act was done innocently.
In Cinnamond v British Airports Authority, the mini-cab drivers were liable for
trespass ab initio as the authority given to them by the law didnt allowed them to
loitering and touting for passengers.
In Elias v Pasmore, the court held that the police officers were not liable because the
law allowed them to enter the Pfs premises and seized documents even though part of
the documents seized were not authorised.

C. Trespass Upon Alienation


In Rubber Industry Smallholders Development Authority v Telekom Malaysia Bhd, the
Pf is the owner of a piece of land which alienated to him by the State Authority. The
Df was liable of trespass as his failure to remove the poles, cables, pipes and wires he
placed on the Pfs land upon the notice was served to him.