Researching the Law
The lawyer then does some research and finds the following account of the
tort of trespass to land in a textbook entitled Walker on Trespass. The learned
author says as follows:
Trespass is an ancient action although it is not much used now. Trespass protects land owners
and holders. A plaintiff commits trespass when they intentionally interfere with land without
permission. Trespass is actionable by a plaintiff who has a right to possess the land. Defences
to trespass are provided by common law and statute. A successful plaintiff will obtain
damages. Damages are awarded to compensate for the invasion or interference per se
calculated according to the circumstances, and to compensate for actual loss occasioned by
the trespass. Additionally, a plaintiff may, at the discretion of the court, be awarded an
injunction. Generally to obtain an injunction a plaintiff needs to show that there is a reasonable
possibility that the trespass will be repeated.
Investigating the Facts
The lawyer then investigates the facts. During the investigation she finds that
none of the defences apply. She also discovers the following. (i) Stuart owns
the house at 12 Big St Smallville. He lives there with his wife, Gladys, and his
triplets, Faith, Hope and Charity, who are studying theology at Notre Dame
University. (ii) Sally is a neighbour in No 14, which is the house between Stuart
and Mary,
Just before midday on the day of the trespass,
Sally saw Mary
walking past Mary’s
house towards Stuart’s house. However, since she was
peering through the curtains at the time Sally did not see whether Mary entered
Stuart’s front yard. About five minutes later, Sally saw Mary walking in the
opposite direction toward her own house at No 16. Mary was carrying a lemon
that she was tossing in the air at the same time displaying a triumphant look on
her face. (iii) On Wednesday evening at about 18.30 hours Mary was seen in
the Boiler Room at the Railway Hotel by ‘Front Line’ Freddy, who reports on
sheep dog trials for the Smallville Examiner
newspaper. Freddy heard Mary
say: “I finally fixed that obnoxious man Little Stuart as I call him. I will keep
doing what I did until he takes that smug look off his face”. (iv) On Saturday
morning, at 10.15 hours Mary was seen by Nosey Parker bringing a lemon
meringue tart to her parish fete, held in the grounds of the Church of St Jude
the Obscure in Smallville.
Organising the Law
To prepare and assess this case the lawyer can utilise the organising
framework provided by the model for litigation. To initiate
this, it is first
necessary to divide the cause of action, trespass to land, into its elements and
consequences. This can be presented in the following table:
Elements
Element (i)
Land
There is land.
Element (ii)
Possession
The plaintiff has a right to possess the land.
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