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Date:
Wed, 22 Feb 2006 06:09:08 -0600
From:
John Goldberg
Subject:
Can Trespass to land be committed without fault (other than in Canada)?
See,
e.g., Burns Philp Food, Inc. v. Cavalea Contintental Freight,
Inc., 135 F.3d 526 (7th Cir. 1998) (applying Illinois law)
(company that builds fence on neighbor's property has committed
trespass even though it thought the fence was on its property and
"no one knew otherwise" until years after it was built;
the fact that the company may have acted reasonably is irrelevant
to the issue of damages because trespass "is a strict liability
tort") (citing Restatement (Second) of Torts Section 158).
-------------------------------------------------------------------
From: Neil Foster
Sent: Wednesday, February 22, 2006 12:41 AM
Subject: ODG: Can Trespass to land be committed without fault (other
than in Canada)?
Dear
Colleagues;
Can
trespass to land be committed without fault? The answer should be
obvious but I have found it surprisingly difficult to track down.
I am referring, not to cases of involuntary entry onto
land (there are clear cases saying no liability if you get pushed
or fall unconscious), but to the sort of case where you (without
carelessness) cross over someone's boundary in the bush (maybe more
likely in Australia than the UK!) without knowing it. A number of
the usually excellent texts assert that there is liability for trespass
to land in such cases (although one imagines damages would be nominal),
but usually the only authority cited is Basely v Clarkson
(1681) 3 Lev 37, where there was said to be liability for trespass
where the defendant mowed some grass on the plaintiff’s land,
thinking he was mowing grass on his own land. I would have thought
there was at least a question as to whether that decision is still
good law since Stanley v Powell [1891] 1 QB 86, which held
that you need to show either negligence or actual intention for
trespass to the person to be made out.
The
reason for the geographical limitation in the title of this message
is that halfway through composing it I found the precise passage
I needed on the issue for Canadian law in Klar Tort Law
3rd ed at pp 98-99. East Crest Oil Co v R [1945] SCR 191
at 195, and Turner v Thorne (1959) 21 DLR (2d) 29 seem
to meet the point and say that there can indeed be "innocent"
trespass to land in Canada. But can I ask whether colleagues are
aware of any more recent cases, or ones in other common law jurisdictions?
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