The Trespass to Property Act addresses situations when a person enters the lands or premises of another person without a legal right to do so. Trespass may also occur when a structure, such as a wall, intrudes onto the lands of another or when an object, such as an eaves trough, intrudes into the airspace of the adjacent property. These trespasses are governed by decisions of the court system (“the common law”) not by the statute. When a trespass involves a structure or an object, the trespasser may have a defence if the trespass was not intentional. There are many fences along property lines on the farm lands and cottage properties in the County of Haliburton. Many of the fences are leaning to one side or the other side of the property line.
The New Brunswick Court of Appeal addressed a situation where a fence leaned over a neighbour’s property. The court was dealing with a fence which the neighbour had built wholly on its own property, perfectly straight and flush with the boundary, and which the court found was leaning a few inches in certain places after three years due to the natural forces of snow or frost. The court described the facts of the case as follows: “With respect to the claim that the defendant had in 1955 put up a fence, the top of which 3 years later was found by Sherren (the land surveyor) to project between 33/4 ins. to 13/4 ins. over the plaintiff’s side of the line dividing the two lots, I am bound to find that the defence has failed to contradict the findings of Sherren in this respect and that the top of the fence, whether due to frost or snow, encroached in 1958 a few inches over the plaintiff’s property.” The court likened the leaning fence to the encroachments of boughs and roots which would constitute only a nuisance but not a trespass. The court stated the law, in somewhat archaic language, as follows: “Trespass to land is the act of entering upon land, in the possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so. In all such cases, in order to be actionable as a trespass, the injury must be direct, within the meaning of the distinction between direct and consequential injuries. It is a trespass, and therefore actionable per se, directly to place material objects upon another’s land; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. To throw stones upon one’s neighbour’s premises is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.”