No Trespassers Allowed

April 2013

The act of “trespassing” is often conceptualized as one
person setting foot on another person’s land without their consent. “Get off my
property, you’re TRESPASSING!” is a common phrase landowners employ when faced
with uninvited guests.

At law, the term “trespass” encompasses much more than
individuals creeping onto their neighbor’s property without permission. In
fact, a landowner’s right to be free from intrusions (be it people or objects)
extends to both the air above and the ground below their land. This legal
principle stems from the latin maxim, “cuius est solum
eius est usque ad coelum et ad inferos”
, which roughly translated means: for whoever owns the soil,
it is theirs up to heaven and down to hell. This communiqué examines the
concept of trespass beneath land, and a landowner’s recourse when faced with
such an event.

Generally speaking, trespass to land occurs when there is an
unjustifiable intrusion by one person upon another person’s land. Trespass also
occurs when something is placed on (or in) land that is owned by another. The
law’s rationale is that a landowner is entitled to freedom from permanent
structures which in any way impinge upon the actual or potential use and
enjoyment of his/her land. Should such a scenario occur, the law provides that
a land owner has a right of action in trespass.

 
A landowner’s right to be free from intrusions extends to
the ground beneath an owner’s land. In Philips
v. California Standard Co.
, 31 W.W.R. 331, the Alberta Court of Queen’s
Bench confirmed that:

In general, he who
owns or possesses the surface of land owns or possesses all the underlying
strata also. Any entry beneath the surface, therefore, at whatever depth, is an
actionable trespass.

This principle is best explained by way of example. In Vetro v. Strata Plan VR2546, 2008 BCPC
275, the plaintiff landowner sued the defendant condominium developer as rods,
rebars and concrete boulders were found protruding into his land from the
neighbouring condominium complex. Upon discovery, the plaintiff promptly had
the rods, rebars and concrete boulders removed. He brought an action in
trespass and sought damages for the costs of removing the items and for pain
and suffering.

The Court found that the continued presence of the rods,
rebars and concrete boulders on the plaintiff’s land constituted a trespass as
they remained underneath the land until their discovery. The plaintiff was
awarded damages for the costs of having the items removed. The Court did not
account for the fact that the rods etc. were inserted into the plaintiff’s land
by mistake. A trespass is deemed to occur whether or not the trespasser has
knowledge of his or her actions.

Should you discover that the ground beneath your land has
been trespassed against, you may seek either an injunction or damages. A court
will order that the objects beneath your land be removed or will alternatively order
the defendant to pay damages to compensate for the harm done to your property.

There is a very limited set of defenses available for
trespass generally, which also apply to trespass beneath land. The defenses
are:

  • consent
    (implicit or implied);
  • self-defence;
  • defence
    of others or property;
  • legal
    authority; and
  • necessity

Unless the trespasser can satisfy a court that he/she meets
one of the defences outlined above, his/her chances of escaping an injunction
or damages award are slim.

Should you discover that there has been a trespass beneath
your land, seek legal advice as soon as possible. You will want to avoid the
perception that you are consenting (even implicitly) to the actions of
trespasser. In the eyes of the law, your right to protect the land beneath the
surface of your property is just as sacred as your right to protect the land on
the surface of your property.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at privacy@millerthomson.com.

© 2019 Miller Thomson LLP. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com.