trespasses. This means that the elements and consequences of trespass are as
follows:
Elements
Element (1) Land
There is land.
Element (2) Possession
The plaintiff possesses the land.
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Element (3) Interference
The defendant interferes with the land.
Element (4) Intention
The defendant interferes with the land intentionally.
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Element (5) Permission
The defendant interferes with the land without
permission of the plaintiff.
Element (6) Defences
There is no defence available to the defendant.
Consequences
Consequence (1)
Plaintiff can obtain damages against the defendant.
Consequence (2)
Plaintiff may obtain an injunction against the defendant
to restrain future trespasses
Figure 5.11 Elements and Consequences of Trespass to Land
Assume that in a case the facts are as follows: “Jack has walked onto a field
called Whiteacre and picked an apple from the apple tree. Jill owns and uses
Whiteacre. Jill has not said or
done anything to indicate that Jack could walk
on her land. Shortly before doing this Jack had said to a neighbour; ‘I am
going to fix Jill and show her what I can do.’” For the illustration it is assumed
that these facts are proved and that there are no defences available.
Major Premise
In the legal version of the syllogism the major premise is a legal rule. It abstract
form it says: “All facts in the categories designated by Elements 1-n cause
Consequences”. A legal rule is true, and thus capable of forming a syllogism
which is sound when it represents a correct statement of the law. The
statement truly states the law and, if it has been interpreted, it has been
correctly interpreted.
In the case of trespass to land it says that where there is land, the
plaintiff
possesses it, the defendant interferes with it, the interference is intentional, the
defendant interferes without permission and there are no defences, there is
trespass so that the defendant is liable for damages and possibly liable to be
___________________
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Strictly this component is that the plaintiff has a right to possession but it
makes the illustration simpler to refer just to actual possession.
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In Australian law trespass can be committed negligently as well as
intentionally. For the sake of simplicity we ignore this extension of the rule.
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