Permanent trespass: injunction or damages?

In most trespass cases, the defendant’s conduct involves a mere temporary occupation or user of the claimant’s land without permanently depriving him of his possession. In these cases, the court will invariably grant the claimant an injunction requiring the trespasser to desist from any continuance of the trespass and award damages representing the market rental value of the property occupied or used for the period of the wrongful occupation or user. This article examines the claimant’s legal remedies if the trespass takes the form of a permanent encroachment onto his land, for example, by the erection of a building. In particular, it considers both a discretionary and non-discretionary approach to such cases. The latter, it is submitted, has the obvious attraction of dispelling the notion that a dispossessing defendant has the right, in effect, to buy adverse title through an award of damages