The city expropriated the property in 1972

The Tort of Trespass
to Land 

Trespass to land
means going on to another’s land without a lawful right or the owner’s
permission to do so. If you go on to someone else’s land without their
permission, unless you have a lawful right to do so — for example, you are
postman, fireman, police officer or meter reader or other person in an official
capacity — your only defence is to show you had no control in getting there,
that is, you had no choice when you crossed the boundary of their land.  If you believe that you had the lawful right
to enter their land and it turns out you did not really have that lawful right,
your honest belief and your good intentions are no defence to trespass.

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The Costello family
(Mrs. Costello and her daughter Mrs. Dickhoff) owned property with a small
motel on it. They applied for a development permit to build a much larger motel
on that property.  The City of Calgary
delayed their application because they wanted to expropriate the property to
expand the road network in the area.  The
city expropriated the property in 1972 and in 1974 leased it and the old motel
to another party.  The Costellos opposed
the expropriation and took their case all the way up to the Supreme Court of
Canada which found that the expropriation was illegal and void.  The basis of their finding was that Mrs.
Dickhoff was not properly served with notice of the expropriation.  She received 17 days notice when the law
required 21 days notice. The property was thus returned to the Costellos in
1983.  The Costellos then brought a legal
action against the City of Calgary for trespass to land.



To prove that
someone has committed a trespass do you have to show that they intended to
commit trespass?



The Court concluded
that the answer is no.  You do not have
to show that they intended to commit trespass. 
You just have to show that they went on to your land or took unlawful possession
of it.


The City of Calgary
argued that, during the period that it had leased the land to another party, it
was not committing trespass because the expropriation was legal in the sense
that the Supreme Court of Canada had not
yet declared the expropriation illegal. The City argued that it had the
“lawful right” to take possession of the land up until the Supreme
Court of Canada declared the expropriation illegal. In other words, it had
intended throughout to implement a legal expropriation.  In short, the City argued, it did not intend to commit the tort of trespass.


The Court rejected
this argument saying that the Supreme Court of Canada had already declared that
the expropriation was void ab initio (invalid
from the beginning).  As such, there was
no time in which the expropriation could be described as having been based upon
any “lawful right.”


The Court restated the fundamental principle that
“trespass does not depend upon intention.”  The Court cited a case in which the Judge
explained that, “if I walk upon my neighbour’s land, I am a trespasser
even though I believe (the land) to be my own.”  The Court concluded that, as long as the City
of Calgary had the intention to expropriate the land, although it was not
conscious at the time of its own wrongdoing, it still committed trespass


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