Q&A: The extent of a right of way to use vehicles

Question

Is if a neighbour’s stable door opens onto our client’s property, is that trespass, or is there an implied right to open such door?

Answer

Trespass to land is a tort which includes physically entering or remaining on land in the possession of another or placing an object on or projecting over the land in possession of another. The act must be carried out without a licence or consent. 

References:

Ellis v Loftus Iron Co [1874] LR 10 CP 10

Trespass extends to any unjustifiable intrusion by one person upon land in the possession of another. Indeed, it has been said that ‘if the defendant place a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it’ (Ellis v Loftus Iron Co).

It is not clear what loss has been suffered by the opening of the stable door onto the land. However, trespass is actionable even without damage or detriment being suffered. 

References:

Gregory v Piper [1829] 109 ER 220Kelsen v Imperial Tobacco Co [1957] 2 QB 334London Borough of Enfield v Outdoor Plus Ltd [2012] EWCA Civ 608

Examples of relatively ‘minor’ acts of trespass may include the following:

• if a defendant has placed something against the claimant’s wall (Gregory v Piper)
• a sign projecting over the claimant’s shop (Kelsen v Imperial Tobacco Co), and
• a hoarding on the land over another (London Borough of Enfield v Outdoor Plus Ltd)

The circumstances explained are likely to amount to a trespass, provided the neighbour has not been given express permission to open the stable door onto the land or acquired an implied right to do so. An implied right may have been acquired in this case by necessity, common intention between the parties or prescription.

For further information, see Practice Notes:

• Trespass—claims and defences
• Implied easements—common law
• Acquisition of easements by long use

This content was first published on the Lexis Nexis Ask Forum. For more information, please contact Emma Preece.