Q&A: The extent of a right of way to use vehicles
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?
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.
Ellis v Loftus Iron Co  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.
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:
This content was first published on the Lexis Nexis Ask Forum. For more information, please contact Emma Preece.
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