Land Law-Trespass to land-Building on another's land by mistake-Law ap-
plicable- Whether plaintiff can demand restitution or merely compensation
Trespass-Trespass to land-Building on another's land by mistake-Remedies
available

Plaintiff and defendant were registered owners of adjoining plots of
land. In constructing certain buildings on his own. land defendant mis-
takenly allowed his buildings to encroach on plaintiffs land to the extent
of about 90 square feet. Plaintiff, on discovering the situation, brought
this action against defendant for trespass to his land, claiming either that
defendant be ordered to remove the buildings on plaintiffs land, or •. in
the alternative, that defendant be ordered to pay plaintiff compensation
assessed at £E.l06, for the loss of enjoyment of the land built on De-
fendant admitted the fact, but contested the reliefs claimed.

In the Civil Court, Khartoum, it was

Held: In the circumstances it would be oppressive to order defendant
to pull down his buildings and vacate the land, since the area in question
was small and of no special value to plaintiff. Plaintiff was therefore
merely entitled to damages, assessed at the undeveloped value of the land,
plus 50% of that value as compensation for being subjected to what was in
effect a compulsory purchase.

On appeal by plaintiff to the Court of the Judicial Commissioner the
decision. of the lower court was reversed, and it was

Held: (i) The English law on this point, which allows a trespasser
who has built in good faith on another's land to be turned off by that
other, who may keep the buildings without compensating the builder,
or even sue the builder for damages if the buildings have damaged
the land, has gone too far in its protection of landowners against
trespassers, since it may produce great injustice in certain cases.

·Court: Wasey Sterry, Acting J.C.

- __ (ii) Under Egyptian law, a trespasser can also be turned off, b:
has built in good faith he may be entitled to compensation for
of his buildings.

(iii) But, good faith here means not only an honest llIist8ke in

the true facts, but also an inability to discover the true facts. "Smas· _
respondent could have discovered the true facts in this case he carmot_
be said to have acted in good faith in the required sense.

(iv) Under the Ottoman Civil Code, Article 906, where a tresp8aer
has built- in good faith on another's land, and the value of the building ••
greater than that of the original land, the land may accede to the buildfDg
but the trespasser must compensate the original owner of the land by tbi
amount of its original value.

( v) Since respondent cannot bring himself within the protectiJ of
Egyptian law, as he lacked the requisite good faith, nor of, Ottoman law,
because he has not proved that the value of his building \ exceeded the
original value of the land, respondent must be ordered to pull down hiI
building, and restore the land to appellant, without receiving oompen-

                sation.                                                                                                      .

Samble this is the result achieved in this case by applying either
English, . or Egyptian or Ottoman law.·

Quaere which law would have been applicable if respondent - could
have brought himself within the protection of the Egyptian or OttOman rules.
Ottoman Civil Code, Art. 906.

Action

The facts as they appear from the case file. are as follows:

Plaintiff and defendant were registered owners of adjoining plots
of building land near the centre of Khartoum. lit 1903 pla~tiff
sold a portion of _ his plot adjacent to defendant's plot to one Panyotti
Tramba. Plaintiff then left Kharoum. Tramba sold the portion he,
had bought from plaintiff to defendant, who commenced to build on'
it, but in doing so allowed the building to encroach' on the land
which plaintiff had retained, by a strip approximately: one metre
wide by nine metres along the boundary, or _ roughly 90- square feet.
Defendant acted in ignorance of the fact that this land was n'ift his,
although a more careful study of his title documents would 'have
revealed the true position. Plaintiff returned to Khartoum in 1905,
and in 1907 he first noticed that defendant 'had _ built on a strip of
his 'land. Plaintiff, after- making unsuccessful approaches to de-
fendant, commenced the present action _ within a month of the dis-
covery.

Advocates: Mr.- Drower ... for plaintiff. Father Stoppany
appeared for defendant.

Mr. Drawer: The land is first-class building land near the
centre of Khartoum. The value of such land is increasing all the
time. Moreover, - the value of the land retained by plaintiff is dis-
proportionately reduced by- the loss of the strip. It is therefore
difficult for the court to fix a fair compensation for the loss, con-
sequently plaintiff demands the return of the strips, without the
building on it. Should the court not agree to this, then the figure
for compensaion should be . fixed rather high, and plaintiff claims
£E.100.

Father Stoppany: It is true that defendant acted wrongly in
building on the land in question, but it was done in genuine ignor-
ance of the facts, by an honest mistake.. Plaintiff's agent had been
able to observe the building while, under construction ahd for three
years afterwards, but had not acted to stop defendant, nor had any
objection been raised until now.· In these circumstances it would be
unjust now to force defendant to pull down his . building. A sum of
£E.100 as compensation to plaintiff, . would be out of all proportion
to, the true value of the land trespassed upon .

. Mr. Drawer, in reply: Plaintiff's agent had not observed the

          building while it was under construction.                       .

March 7,1908. N., G. Davidson, J.: In his case I have first
to decide whether the plaintiff is to have order for the possession of
this strip of land one metre in width and roughly ten in length, or
whether he is only to have compensation in money' for the encroach-
ment.

The plaintiff left the 'Piece of land on which the en'croachment
was made for a number of years without visiting it himself or leaving
anyone to look after it. The defendant received no warning of
their mistake; they were permitted to build on this strip, and no
objection was raised till long after, namely, in April of 1907:

I am of opinion that it would be oppressive to vacate this strip
of land now. Such an order would be a hardship on the defendaat
and o~1io use to the plaintiff except as a means of extorting fIrom
the .4efendant much more than the land itself is worth. The pw.
tiff',g contention that the land has a special value for him completeJy
.broke down when he came to give his evidence. The plans which
. exist only in his mind cannot be definite enough to be spoiled by; a

~fference in the area available made by such a small strip.

The value of the land in this position is certainly not more

than PT. 100 a square metre. The plaintiff is entitled to the same
thing for what really amounts to a compulsory sale. Add 50% 'for
this. I fix the damages for the loss of these 10 square metres. at
£E.1S.

There will be judgement for the amount together with eosts
which are to be reckoned on the basis of a claim for £E.lS.

.udgemen: for plaintiff

From the above judgement plaintiff then appealed to the Judicial
Commissioner, claiming that the award of £E.lS. compensation made
by the court of first instance was wrong in law, or alternatively. was
inadequate.

Appeal

April 6, 190,8. Wasey Sterry, Acting J.e.: In my opinion
this appeal. must be allowed. There is no question that the Catholic
Mission has trespassed on the ground of the appellant and therefore
under ordinary circumstances he would be entitled to tum them off.
Under English law, which has gone -too far in my opinion in consid- .
ering that every piece of land is of so unique a character that a .
remedy in damages cannot be given in a case of . this kind, the real
owner is entitled to tum off the trespasser, keep the buildings erected
on the land, and recover damages from the trespasser if the land has
been damaged by them. Under Egyptian law as administered by
both the Native and Mixed Tribunals the. matter depends very much
on whether or not the trespasser built in .good faith. In either case
the trespasser must give up possession, but his n,ghts to receive com-
pensation from the real owner for the value of the buildings taken
over by him depend on the good faith of the builder.

I may remark here that the good faith required in this-instance
to by,"Shown appears to be not only that the trespasser acted in ignor-
~, but that he had not the means of knowing what his rights were:

Now in this case, though I have no doubt that the Catholic Mission
acted in ignorance and without intending to· take land which' did
not belong to them, after seeing their document ~f title I have no
doubt that the document properly understood showed th~t they were
trespassing. I do not· think, therefore, however free from, moral
blame they may be, that they can legally say they acted in good faith.

There is a further point however w~ch may be raised, .are

'there not certain circumstances in which it would be inequitable to
order the restoration of the land by reason of ,the excessive damage
done to the trespasser and the small amount of good done to the real
owner by the restoration? This is the point of View which the civil

.: judge has taken in this case. It is supported as a generai principle
by' the provision of the Ottoman Civil Code, art. 909 which says:

"If the person who possesses without right the land of
another, make in it constructions or plantations, he will be
obliged to restore the land alter having removed them. H
their removal is prejudicial to the land the proprietor may
keep them by paying the value to the person who has built
them after deduction of the expenses of demolition or 'uproot-
ing. But in' the case where the constructions and planta-
tions would have a value greater than that of the land if
the possessor was of good faith when/he made them, he can
keep the land by payi~g the value of them to, the proprietor."

Such a case would no doubt be that of a large block of buildings
the destruction of the side of which would involve' pulling down a
large part of the whole building. I do not think I can say that this-
is so hete.· Mr. Episcopoulo, the appellant, says he is himself pre-
pared to remove and reinstate the buildings for the sum of £E35,
and. as a matter of fact it. would be necessary to deduct the cost of
the demolition to arrive at the actual value of the small bit of building.
The civil judge has .estimated the value of the land at £EI a square
metre; Mr. Williamson, through whose hands all actual transactions
in the town pass, estimates the value at PT. 20 a square foot: or.
over £E2 a square metre; Mr. Episcopoulo says at 'least .£EIO a
square metre, but calculated on the basis of rental of the liuildings
now occupying part of his land, and. capitalizing this at 570 per
annum and deducting the cost of the buildings, a result of £E17lh
pounds about a metre results. I cannot say therefore that I think
it can fairly be said that the buildings are worth more than the land.

Under those circumstances 1 do not think that I can do anything
else but reverse the judgement of the civil judge.

Thefe will be a declaration that the appellant is entitled to tho
piece 0t' land claiined and the respondents must remove their building
and 'deliver up possession within two months from today and as the
appellant has 'succeeded they must also pay the costs here and below