Overlapping interference

Trespass and private nuisance are related concepts in the law of torts. The former involves the direct interference with the claimant's exclusive possession of land. The latter is concerned with the indirect (or consequential) interference with the use and enjoyment of land. Traditionally, therefore, the two doctrines have been regarded as functionally distinct categories in tort law.

But are these two doctrines in fact mutually exclusive? Can an intrusion onto land caused, for example, by the over-flight of a crane constitute both a trespass and a nuisance? There are several English cases which clearly establish that this is a trespass, but can it also give rise to a nuisance? Conversely, can the emission of toxic fumes from neighbouring land give rise to an action in trespass as well as nuisance?

From a practical point of view, it may be important to characterise the relevant claim as lying within both doctrines, not least because a cause of action in nuisance alone will fail in the absence of proof of unreasonable interference and actual damage. Every trespass, on the other hand, is actionable per se regardless of reasonableness or proof of injury.

Moreover, while the limitation period for a tort action (including trespass to land) is six years from the tort being committed, damages for nuisance in respect of personal injuries are statute-barred after only three years from the date when the cause of action accrued (see section 2 and sections 11-14 of the Limitation Act 1980).

Interestingly, the overlap between the two doctrines has been judicially recognised in several American cases.

Physicality and direct interference

In Martin v Reynolds Metals Co 342 P.2d 790 (1959), the claimants sued for trespass claiming damages to their farm from the operation of the defendant's nearby aluminium reduction plant. The trial judge awarded the claimants $71,500 for damages to their land, which could no longer be used to raise livestock because the cattle were poisoned by ingesting fluoride compounds that became airborne from the plant and settled on the claimant's land. The claim for damages was for the period from August 1951 to the end of 1955. If the action was permissible in trespass (with a six-year limitation period) then the claimant was entitled to the full amount. But if the action was one of nuisance, the damages fell to be significantly reduced (i.e. recoverable for only 1954 and 1955) because of a two-year limitation period that applied to nuisance actions.

Interestingly, the Supreme Court of Oregon recognised that the same conduct on the part of the defendant could result in an actionable invasion of both the right to exclusive possession and use and enjoyment of the land. In the words of O'Connell J:

'Where the action is brought on the theory of nuisance alone the court ordinarily is not called upon to determine whether the conduct would also result in a trespassory invasion. In such cases the courts' treatment of the invasion solely in terms of the law of nuisance does not mean that the same conduct could not also be regarded as a trespass.'

In cases involving the emission of substances such as dirt, smoke and soot, the separate particles which collectively cause the actionable nuisance are obviously very small (even microscopic) in size. Nevertheless, the deposit of each of these particles does necessarily constitute a physical intrusion onto the claimant's land.

Applying this reasoning, O'Connell J defined trespass as 'any intrusion which invades the possessor's protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the mathematical language of the physicist'. The upshot, therefore, was that the intrusion of the fluoride particulars (despite size) constituted a trespass allowing the claimants to recover the full amount of their damages.

This expansive view of the trespass action was also applied in Borland v Sanders Lead Co Inc 369 So.2d 523 (1979), involving an action in trespass for lead pollution emitted from the defendant's smelter. The Supreme Court of Alabama held that the same conduct on the part of the defendant could result in an actionable invasion of both a possessor's interest in exclusive possession of property and his interest in its use and enjoyment. The same conduct, therefore, could constitute both a trespass and a nuisance and were not necessarily mutually exclusive (see also Scriber v Summers 84 F.3d 554 (1996), where the physical contamination of land with barium particles was characterised as a trespass as well as a nuisance; and Mercer v Rockwell International 24 F.Supp.2d 735 (1998), where it was held that invasion by invisible particles could constitute trespass).

English law, however, continues to treat such intangible intrusions as nuisance cases and not trespass. The notion here is that there can be no trespassory invasion where there is no 'thing' which can be seen with the naked eye. Hence, the orthodox view is that trespass does not cover situations where the claimant's land is invaded by, for example, fumes, dirt or smell. However, this approach is outmoded in failing to recognise that objects do have an existence at the molecular or even atomic level. The difference in size of the physical object(s) through which the interference occurs should not govern whether the claim is characterised as lying in trespass or nuisance.

Apart from this recognised distinction, there is also the notion, as we have seen, that a trespass must involve a direct interference with land. The Canadian case of Mann v Saulnier (1959) 19 DLR (2d) 130 is illustrative of this principle. Here, the New Brunswick Supreme Court concluded that there was no trespass when the top of a fence, originally built flush with the boundary line, subsequently encroached a few inches over the adjacent land as a result of the action of frost and snow.

Such a situation, despite the obvious physical intrusion of a tangible object over the claimant's airspace, invited liability in nuisance (not trespass) provided there was proof of actual damage. This reasoning accords with the English cases on tree root and branch encroachment which characterise the physical intrusion as being a nuisance because of the indirect (or consequential) nature of the act in question (see Davey v Harrow Corporation [1958] 1 QB 60 and Lemmon v Webb [1894] 3 Ch. 1.).

Overlap between causes of action

It is arguable that the over-flight of the boom of a crane gives rise to both causes of action. It is a trespass because the operation of the crane results in a physical intrusion into the claimant's airspace and, therefore, constitutes a direct physical interference with the land. It can also arguably give rise to a nuisance if the indirect consequences of the intrusion amount to an unreasonable interference with the claimant's use and enjoyment of the land.

The key element in determining the appropriate cause of action is the defendant's degree of control over the thing which has caused the interference. Thus, if the crane's operator moves the jib onto the claimant's airspace, this will rank as a direct interference and a trespass. On the other hand, if the crane is left overnight to swing freely (as the wind blows) over the claimant's property, this may be characterised as an indirect interference and private nuisance.

The reason for the distinction is that the crane operator has direct control over how the crane moves, but there is no such obvious control when the crane is left to swing on its own by the operation of natural forces. However, because the crane (in this latter example) is deliberately released knowing that it will almost inevitably be carried onto the claimant's land, there is scope for saying that this will still qualify as a direct interference by analogy with cases where an object is placed in a river and is carried by the flow onto the claimant's land (see Jones v Llnrwst Urban District Council [1911] 1 Ch 393).

In either case, therefore, the crossing of the crane jib over the claimant's property will almost certainly qualify as a trespass. That conclusion, however, does not preclude the possibility of an additional claim in nuisance provided the claimant can establish the interference is an unreasonable interference with his use and enjoyment of the land and has caused damage.

Significantly, in this context, actual physical damage to the land is not necessary to establish a cause of action in nuisance.

It would be enough if the claimant was able to show that the over-flight of the crane caused him apprehension, inconvenience or materially interfered with his ordinary comfort of the land.

In Woollerton and Wilson Ltd v Richards Costain Ltd [1970] 1 WLR 411, the defendants installed a tower crane on a building site which overhung the claimant's property.

The action was brought in trespass, but Stamp J made specific reference to a potential action in nuisance had the movement of the crane given rise to any damage, apprehension or inconvenience (ibid at 413). Absent any damage, however, the claimants' case was limited to seeking an injunction restraining the defendants from continuing the trespass.

Similarly, in Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334, an advertising sign erected by the defendants projected into the airspace above the claimant's single-storey shop. Although the interference was characterised as a trespass, McNair J alluded to an additional claim in nuisance had the presence of the sign caused inconvenience and an interference with the claimant's use of his airspace.

Such was the case in Fay v Prentice (1845) 135 ER 769, where a cornice, which had been erected by the defendant over the claimant's land, caused rainwater to flow into the claimant's garden causing extensive dirtying of the gravel walks. The court held that the encroachment amounted to an actionable nuisance because the claimant had been 'greatly annoyed and incommoded in the use, possession and enjoyment' of his land.

In this case, damage was an inevitable consequence of the encroachment and so was judicially presumed. Where, however, there is no obvious damage to land and the claimant relies solely on discomfort and inconvenience, this will need to be established by actual evidence.

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