“The law bounds every man’s property, and is his fence.”
-The Court of the King’s Bench, 1711(1)“Under our law every invasion of private property, be it ever so minute, is a trespass.”
-Mr. Justice Galt, 1921(2)
Abram and Marie Friesen were picking fiddleheads near a brook on their New Brunswick farm when three Grumman Avengers passed directly overhead, engulfing them in a cloud of spray that burned their cheeks and eyes and made them cough. The Friesens, organic farmers who shunned pesticides, were furious. They knew that, as part of its spruce budworm control program, the New Brunswick government had contracted Forest Protection Limited to spray forest lands with a pesticide containing a highly toxic agent called fenitrothion. Just one week earlier, Dr. Friesen had asked the company not to spray his property.
That evening, the Friesens discovered several hundred dead bees in front of their hives. Their 12-year-old son, who had inhaled the drifting spray, suffered a protracted asthma attack. During the following weeks Dr. and Mrs. Friesen experienced a variety of physical ailments, which they attributed to fenitrothion poisoning. Two of their cows, a pony, and two sheep died; no evidence, however, linked these deaths to the spraying.
The Friesens sued Forest Protection Limited for damages. Among other things, they argued that the company had trespassed on their property. The judge that heard the case ruled against the company, requiring it to pay $1,328.20 in damages. In finding that the spraying did indeed constitute a trespass, the judge explained the law as follows:
To throw a foreign substance on the property of another, and particularly in doing so to disturb his enjoyment of his property, is an unlawful act. . . . This of course does not involve any question of whether or not the spray may have been toxic or non-toxic, because even to have thrown water, or garbage, or snow, or earth tippings, or any substance on the property would equally have amounted to an act of trespass.(3)
That was in 1978. But the law that the Friesens relied upon can be traced back many centuries, to the English common law – the unwritten or customary law that from medieval times has governed the rights and responsibilities of property owners. English settlers brought the common law to what is now Canada, first to Newfoundland in the sixteenth century, later to the West (via the Hudson’s Bay Company) in the seventeenth century, and still later to Ontario (then Upper Canada) in the eighteenth century. Common law continues to apply in most of Canada, except when it has been overridden by statutes and regulations. Quebec, governed by its civil code, has remained outside the common law system.(4)
Rather than being written in statutes (by being passed as laws by legislatures), common law property rights have evolved in the courts through the ages. The doctrines of precedent and stare decisis (from a Latin phrase meaning “to stand by decisions and not to disturb settled matters”) have governed the evolution of the common law, requiring judges to follow previous relevant court decisions and establishing a hierarchy of precedents. These doctrines have helped ensure that property rights’ traditional importance continues to inform the common law to this day.(5)
Many provisions of the common law function as environmental protection laws.(6)
For example, under the common law it is a trespass to place anything upon someone else’s property, or to cause anything to be placed there by wind, water or other means. Any invasion of another’s land – whether by people, flood-waters, structures, or pollutants – constitutes a trespass.(7)
In its early days, trespass law helped people combat the divers environmental problems of an agrarian society, from straying livestock to seeping privies. One 1703 ruling included the following discussion of trespass: “[E]very one must so use his own, as not to do damage to another. And as every man is bound so to look to his cattle, as to keep them out of his neighbour’s ground, that so he may receive no damage; so he must keep in the filth of his house of office [his privy], that it may not flow in upon and damnify his neighbour.”(8)
Even trespasses that cause no damage are, under the common law, unacceptable. A trespass is a trespass, regardless of its consequences. A 1765 decision, for example, noted that a man could be subject to an action for trespass, “though the damage be nothing,” for merely “bruising the grass and even treading upon the soil.”(9)
In this century, people have adapted the law of trespass, using it to protect themselves or their land against encroachment by industry. The Alberta Supreme Court held in 1976 that fly ash and sawdust from a lumber company constituted a trespass against a nearby motel. In a decision that should have sweeping implications for air pollution of all kinds, the court explained that it is a trespass to cause any noxious substance to cross the boundary of another’s land.(10)
In another Alberta case, the Court of Appeal ruled that the cross-arms and wires of a transmission line belonging to an electric utility trespassed over the airspace of a neighbouring farm. The court noted that early common law cases had determined that signs, telegraph wires, eaves, or any other structures that hang over another’s land should be forbidden as trespasses. That the owner was not using his land, and was therefore not damaged by the trespass, was irrelevant: “[A] landowner is entitled to freedom from permanent structures which in any way impinge upon the actual or potential use and enjoyment of his land.”(11)
Trespass law has also been used to stem water pollution. (More frequently, people have relied upon a branch of the common law called riparian law to protect lakes and rivers.) In one turn-of-the-century case, a New York court issued an injunction against a town’s sewage disposal practices: in emptying sewers into a creek that flowed through a farmer’s land, causing filth to accumulate on the creek’s bed and along its banks, the town had trespassed against the farmer. This violation of the farmer’s property rights could not be permitted, regardless of the public necessity of the sewage works or the great inconvenience that could result from shutting them down.(12)
Even unwanted mail has been the target of at least one trespass case. In 1993 an Ontario court ruled that a record club, by continuing to send mail despite a man’s repeated requests to be removed from its mailing list, committed a trespass.(13)
Trespass law has had to evolve to suit modern industrial society. Courts have wrestled with the question of how far property rights extend above and below the land. The thirteenth-century maxim, “a landowner owns everything from the sky to the depths” (in Latin, cujus est solum, ejus est usque ad coelum et ad inferos), guided early common law cases. Some recent cases, on the other hand, have narrowed the scope of ownership and determined that airspace is public domain; air traffic far above the ground which is transient and does not directly interfere with the use of people’s property does not constitute a trespass. As one judge noted, however, a low-flying aircraft might indeed commit a trespass.(14)
As a general rule, rights to airspace extend only as far as is necessary to protect the use and enjoyment of one’s land and structures.(15)
Another question facing the courts, as ancient trespass laws evolve to suit contemporary circumstances, is whether an invasion need be tangible to constitute a trespass, and if so, how to define tangibility. Traditionally, courts restrained only sensible, visible invasions – invasions by a tangible mass that could be seen by them in evidence. But modern science, enabling courts to verify the presence of invisible pollutants, has vastly expanded potential applications of trespass laws. Some courts, relaxing traditional requirements, have found invisible gases and microscopic particulates to be trespasses.(16)
In the most frequently cited cases, the invisible trespasses have damaged property.(17)
But traditional trespass law allows a landowner or tenant to sue whether or not he has suffered any harm. Conceivably, then, courts could define trespass to include any measurable invasion, any scientifically detectable emission, regardless of its effect.(18)
It is impossible to know what balance the courts will strike in their efforts to preserve common law principles while preventing scientific advances from pushing trespass law to unworkable extremes. At a minimum, trespass law will remain a powerful tool for protecting oneself against visible encroachments. And where it fails as a remedy for environmental wrongs, nuisance law, which has traditionally dealt with less material infractions, may succeed.
For bibliographic information on references, please see Works Cited.
1. Star v. Rookesby (1711), 1 Salk. 335, 91 E.R. 295 (K.B.).
2. Boyle v. Rogers,  2 W.W.R. 704 (Man. K.B.).
Although not mentioned in the judgment, this and the passage that follows echo, virtually word for word, the 1765 decision in Entick v. Carrington. See note #9.
3. Friesen et al. v. Forest Protection Limited (1978), 22 N.B.R. (2d) 146 at 162 (S.C.Q.B.).
4. The formal reception of the common law varied from province to province. After its creation by the Constitution Act of 1791, Upper Canada enacted a statute adopting the English law: “In all matters of controversy relative to property and civil rights, resort shall be had to the Laws of England as the rule for the decision of the same” (Risk, “The Law and the Economy in Mid-Nineteenth-Century Ontario,” 107). Thus Ontario courts, like those elsewhere in Canada, became legally obligated to follow the laws as revealed by the English courts.
The Canadian courts gradually gained independence from their British counterparts. The 1931 Statute of Westminster eliminated Britain’s capacity to legislate for Canada, unless Canada so requested. And in 1949, the Supreme Court of Canada replaced the Judicial Committee of the Privy Council in England as the highest court of appeal for Canadian cases. Canadian courts, however, often continue to look to English precedents when deciding cases.
American judicial decisions have also, although to a lesser degree, influenced Canadian courts. While, like their Canadian counterparts, American courts adopted English law, they occasionally interpreted it differently. Loyalists settling in Upper Canada, bringing with them an understanding of American law, may have influenced the early Canadian legal system (Flaherty, “Writing Canadian Legal History,” 22, 26). Of greater influence was the similarity of the legal challenges facing the two countries. Canadian judges could look to American cases without violating their obligation to follow English precedent if no English cases applied to the situation at hand (Risk, op. cit., 108).
Because both English and American cases helped form Canadian property law, and continue to influence its development, this book will discuss cases from all three countries.
For more information on the evolution of property rights, see Hogue, Origins of the Common Law; Blackstone, The Commentaries on the Laws of England, Volume 1, Introduction and Chapter 1; Horwitz, The Transformation of American Law 1780-1860; Pollot, Grand Theft and Petit Larceny, Chapter 3; and Gall, The Canadian Legal System, 25-46.
5. Gall, op. cit., 179-180.
According to Blackstone, “precedents and rules must be followed, unless flatly absurd or unjust” (op. cit., Volume 1, 48).
6. The cases presented in Part One and the Appendices, emphasizing the strengths of the common law, illustrate the ways in which plaintiffs have used their property rights to protect the environment. Cases pre-sented in Part Two illustrate situations in which plaintiffs have lost their bids to protect the environment.
7. A trespass occurs against the person in possession of the invaded land. If a tenant is in possession of the land at the time of the trespass, it is normally he rather than the owner who should sue. See Halsbury’s Laws of England, Volume 45, 637, 639.
According to Fridman, even a wrongful possessor of land, such as a squatter, can sue for trespass as long as he claims immediate and exclusive possession of the land and as long as the alleged trespasser is not the true owner or is not acting on the true owner’s behalf (Introduction to the Law of Torts, 190).
See Appendix A for summaries of a number of trespass cases.
8. Tenant v. Goldwin (1703), 2 Ld. Raym. 1090, 92 E.R. 222 at 224 (K.B.).
Harvey, in “Riparian Water Rights,” provided the translation of “house of office.”
9. Entick v. Carrington (1765), 19 St. Tr. 1030 at 1066 (C.P.).
10. Kerr et al. v. Revelstoke Building Materials Ltd. (1976), 71 D.L.R. (3d) 134 (Alta. S.C.).
Unfortunately for the environment, the decision, which awarded damages instead of an injunction, did not shut down the sawmill. For reasons that he did not explain, the justice decided that “in these circumstances an injunction would not be an appropriate remedy.” He may have been influenced by the fact that the motel had been closed for five years. Or he may have been sensitive to the federal government’s efforts to encourage industry to locate in this depressed economic area – something he commented on in his judgment.
11. Didow et al. v. Alberta Power Limited,  5 W.W.R. 606 at 616 (Alta. C.A.).
12. Sammons v. City of Gloversville, 34 Misc. Rep. 459, 70 N.Y. Supp. 284 (Sup. Ct. 1901), aff’d 67 App. Div. 628, 74 N.Y. Supp. 1145, 175 N.Y. 346, 67 N.E. 622 (1903).
The court specified that the injunction restraining Gloversville from fouling Mr. Sammons’ premises would not become operative for a year, and retained the right to extend it further if it took longer than a year for the city to establish a different sewage system or to obtain legislative relief.
13. Mather v. Columbia House (6 August 1992), 10315/91 (Ont. Ct. Gen. Div.).
14. Didow et al. v. Alberta Power Limited, op. cit.
15. Halsbury’s Laws of England, op. cit., 632.
See, for example, Lacroix v. The Queen, in which the court found that “the owner of land has a limited right in the air space over his property; it is limited by what he can possess or occupy for the use and enjoyment of his land. . . . [T]he owner of land is not and cannot be the owner of the unlimited air space over his land, because air and space fall in the category of res omnium communis.”  4 D.L.R. 470 (Ex.).
For a more extensive discussion of this issue see Estrin and Swaigen, Environment on Trial, 116-7, and Prosser, Handbook of the Law of Torts, 69-73.
16. Prosser, ibid., discusses this issue on 66. Also see Heuston, Salmond and Heuston on the Law of Torts, 46; “Deposit of Gaseous and Invisible Solid Industrial Wastes,” 879-80; and Clover, “Torts,” 117 ff.
For a discussion of this issue in the context of nuisance law, see Walker v. McKinnon Industries Ltd.,  4 D.L.R. 739 (Ont. H.C.), aff’d  3 D.L.R. 159 (Ont. C.A.), aff’d  3 D.L.R. 577 (P.C.).
17. Fairview Farms Inc. v. Reynolds Metals Co., 176 F. Supp. 178 (D. Or. 1959); Martin v. Reynolds Metals Co., 342 P. 2d 790 (Or. 1959), cert. denied, 362 U.S. 918 (1960).
Also see McDonald et al. v. Associated Fuels Ltd. et al.,  3 D.L.R. 775 (B.C.S.C.), in which a justice of the British Columbia Supreme Court suggested that carbon monoxide could constitute a trespass.
18. For further discussion of this problem and a possible solution, see Rothbard, “Law, Property Rights, and Air Pollution,” 250-4. Rothbard suggests that if trespass is defined as an interference with one’s exclusive use of one’s property, many intangible invasions – which would not so interfere – would not constitute trespasses.
Magnet suggests that contemporary courts may be less willing than their traditional counterparts to treat trifling interferences as trespasses (“Intentional Interference with Land,” 291).