Trespass to land means interference with the possession of land without lawful justification. In trespass, the interference with the possession is direct and through some tangible object. Trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass.To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is necessary.
Trespass may be committed-
by entering upon the land of the plaintiff, or
by remaining there, or
by doing an act affecting the sole possession of the plaintiff in each case without any justification.
Trespass could be committed either by a person himself entering the land of another person or doing the same through some material object, e.g., throwing stones on another person’s land.
Allowing cattle to stray on another person’s land is also trespass. It is, however, no trespass when there is no interference with the possession.
Essentials
Trespass by unlawful entry
Trespass by remaining on land
Trespass by placing things on land or by doing an act affecting the sole of possession of the plaintiff land
In each case without justification.
There are two kinds of trespass:
Trespass quare olasum fregit– this means the entry on another person’s land.
Trespass de bonis asportatis– this means the taking away of another person’s goods.
Trespass to Land – Trespass to land stems from the dictum “cuius est solum, eius est usque, and coelum et ad infernos”
meaning that anyone who owns the land owns it all the way up to heaven and down to hell. Land is far more than merely the physical soil. Land ownership has been granted the rights to all natural resources on the land. Land includes any buildings and fixtures attached to the ground like houses, walls, standing crops, the ground itself, the airspace above and the ground below to a reasonable height or depth in relation to the normal use of the land. In the case of trespass to land, the unlawful land infringement must be direct, intentional and actionable in itself. The entry must be intentional in the sense that the trespasser intended to go onto that particular land. The trespasser’s intention to trespass is not at all necessary.
Illustration: A parachutist’s entry into the land accidentally blown by the wind is unintentional and there is no liability for trespass.
How is Trespass to Land committed?
Trespass to land may be committed in three situations. In each case, the entry must be without justification. The cases are:
- Entering the land of the plaintiff:
In order to constitute a trespass, entry is essential.
Entry must be without permission.
The land must be in possession of the plaintiff, it may be actual or constructive.
Entry must be voluntary which means not against a person’s will or by force.
Entry must be intentional. - If the defendant consciously enters a land that he believes is his own but that turns out to be the plaintiff’s land, he is still liable for trespass. It is irrelevant that the defendant made a reasonable mistake and was not negligent.
- Basely v. Clarkson , When the defendant mowed his own land, he mistakenly crossed the boundary and mowed the land of his neighbor, believing it was his own land. The defendant’s plea of mistake in claiming trespass to land failed because his act of cutting grass was intentional even though he made a mistake as to where the boundary was. However, if the entry is proven to be involuntary then it is not a trespass.
- Illustration: When a person who is not in possession of the surface holds mining rights: if the surface of the land is in possession of A and the subsoil in possession of B, the surface entry will be an infringement of A and the subsoil entry will be an infringement of B.
- Note- Entering a land prior to the complete transfer of its title to the acquirer shall be considered a trespass.
Public streets, including pavements, are primarily dedicated to public use for passage purposes and may not be used for private residence, private business or as a prayer ground for a particular community.
By staying on land having asked to leave or after any permission has come to an end : If there remains a person who has legally entered another’s land, he commits trespass after his right of entry has ceased. His misconduct relates back to making his original entry tortuous, and he is liable for damages, not just for the entry itself, but for all subsequent acts. This is referred to as trespass ab initio and the abuse will make the original entry illegal.
Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath ,
Although entry into the property may be legal, therefore, if possession continues even after permission has been given, it may amount to trespass ab initio. The corresponding concept of continuity of a civil mistake can be found in the Tort Law. Trespass in torts can be continued one. Again, if the entry was legal but is subsequently abused and continued after the permission has been determined, the infringement may be ab initio.
Minister of Health v. Bellotti , A licensee whose license has been terminated or is extinguished by expiry may be sued as a trespasser if, upon request, he does not vacate and a reasonable time has elapsed.
Trespass by interference with the land of another :
Any interference with another’s land is considered to be a constructive entry and trespass.
Example- throwing stones or materials over neighboring land, it may also be a gas or invisible fumes. Driving a nail into a personʼs wall, placing anything against the plaintiffʼs wall, planting trees in plaintiffs land, or placing any chattel upon the plaintiffs land is trespass by interference on the land of another person. It was said in Abdul Gani v. Sadu Ram and Others, that discharge of filthy water from a spout in the defendant’s house on the plaintiff’s land is trespass.
Aerial Trespass – The landowner has the right to the airspace above the surface ad infinitum. The ordinary rule is that whoever has the solum, whoever has the site, is the owner of all up to the sky and down to the earth’s center. In modern times, the owner has the right to air and space above his land is limited to the height required for the ordinary use and enjoyment of his land.
Kelsen v. Imperial Tobacco Co. Ltd.
An advertising sign erected by the defendants over the plaintiff’s single storey shop projected into the airspace. The defendant argued that a superincumbent airspace invasion was not trespass, but a nuisance alone. The projection into the airspace of the plaintiff was held to be a trespass and not a mere nuisance, and a mandatory injunction was granted.
Continuing Trespass – Every Continuance of Trespass is a fresh infringement and an action can be brought against it. The continuation of day-to-day trespass is considered a separate trespass on each day in law. Illustration: An action can be taken for the original trespass of placing some material on someone else’s land and another action to continue the deposited things.
Note: A recovery of damages in the first action, by way of satisfaction, does not operate as a purchase of the right to continue the injury.
Trespass by joint-owners
Joint-tenants or tenants-in-common can only sue one another in trespass
For acts done by one inconsistent with the rights of the other.
Ex. Destruction of a building, carrying away of soil etc.
Trespass by animals
Trespass by a man’s cattle is dealt with similar to trespass committed by himself.
The owner of the animal is responsible for the trespass and consequential damage.
Ellis v. Leftus Iron Co. –
Injury by horse- defendant’s horse- injured – plaintiff – biting and kicking her through an iron fence – belong – liable – no negligence.
DEFENCES
General Defenses to Trespass
The law of trespass is essentially segregated into two halves i.e. the tort for criminal trespass which essentially forms assault and battery
and trespass to property. Each half has its own set of defenses in general. Though a couple of defenses are the same but yet are different.
The tort of trespass can be given a lax in the case of the defenses that have been prescribed.
1) Justification – Certain times there is a lawful justification to the encroachment of a person or his land. This justification is backed by a lawful reason which has either been given by statute or by judicial precedent. For example in the case of trespass to land Police officers are permitted to enter land to make an arrest. And if in the case of Criminal trespass a police officer is entitled to cause bodily injury in good faith, in the course of his duties. If a suspect to a crime is pointing a gun at the officer the officer is entitled to use force to apprehend the suspect. There are many forms of justification. There even could be the presence of a license to enter the land of claimant which has been obtained under the law. In such cases the encroachment is valid. The two general principles in the case of justification are
a) A justified legal authority encroaching upon a persons land or using force against a person for lawful reason.
b) A distinction between an absolute right to do an act and the mere power to do an act. When it is the former it is justified but when it is the latter it is not justified. Entry under a legal process is justifiable
2) Right to Private self defence – Act of defense of oneself falls under the defense used to protect oneself from the liability of criminal trespass. The needs to be a reasonableness in the defendant attitude but the general principle is that the right of private self defence that is exercised is only when the claimant himself is in the wrong and secondly that the force used in exercise of private defence is proportionate to the act that has been done.
REMEDIES
Re–entry – If a person’s possession has been disturbed by a trespasser, he has a right to use reasonable force to get the trespass vacated.
Damages – A claim for damages in order to recover any financial loss suffered as a result of an infringement may be made or, alternatively, a nominal sum may be awarded if no damage is suffered.
Injunction – In some cases of land trespass, the claimant may not want financial compensation at all, but will instead seek an injunction, a court order to prevent a continuing or future infringement, or perhaps a statement of unlawful infringement. Example: Asking someone to remove his tree.
Proving possession at the time of trespass is important when initiating action, either actual or constructive. Possession means having something at your own disposal or the right to use it exclusively. It is protected in its own right.
Example: A has gone to a car showroom and is examining the vehicle’s different features and taking the test drive. The car is in his custody while driving the car, but not in his possession. But he’s in full possession of it if he runs away with the car. Here, he has both the animus and possession necessary, and he can exclude others except the car shop owner. The wrongful possession is therefore protected by law against all but the wrongful possession.
Possession
(i)- Possession in fact (de facto possession) like servant’s possession.
(ii) Possession in law (de jure possession) like master’s possession.
The servant’s intention here is to exclude others on behalf of his master and he can maintain a trespass action against those who interfere with property or article possession. While the intention of a master is to exclude others from interfering with the thing and he is doing so on his own behalf.
There is a difference between ‘possession right’ and ‘possession right.’ If X is a landlord who subordinates his premises to Y for 11 months, it means X is entitled to possession after 11 months ‘ expiry and the tenant is entitled to possession during this period. A person who has the right of possession has the right to sue for infringement and not the right of possession.
TRESPASS TO GOODS
It means direct physical interference with the goods which are in the plaintiff’s possession, without lawful justification.
Throwing stones on a car, shooting birds, beating animals or infecting them with disease or chasing animals to make them run away from it’s owner’s possession are examples of trespass to goods.
Trespass to goods is also actionable per se.
Detinue
It is an action under which the plaintiff can recover the goods from the defendant when the same are being wrongfully detained by the latter.
In India, such an action is permitted under section 7 and 8, Specific Relief Act, 1963.
In England ‘detinue’ has been abolished. Tort of conversion has been extended to cover those cases which were known as ‘detinue’.
Conversion
A conversion is any act of wilful interference, without any lawful justification, in a manner which is inconsistent with the right of another, whereby that other is deprived of the use and possession of the chattel.
The expression ‘wilful interference’ is used for describing the element of intention referring to the intentional commission of the act resulting in conversion.
If a person deals with a chattel in a manner which is of such a nature that is necessarily inconsistent with the rights of the plaintiff, such dealings will be considered as intentional and will amount to conversion even if he did not know of the right held by the plaintiff and honestly believed that he was entitled to do so.
For example, an auctioneer is held liable for conversion even if he honestly believed that the goods which are being auctioned belongs to the seller and not to the plaintiff.
Conversion can be committed in various ways but the main link in every act that constitutes conversion is that it consists of dealings with goods by assertion of rights which is either inconsistent with the rights of another or unjustifiable denial of the rights of another in them.
The tort of conversion is applicable only to chattels and does not extend to cover the appropriation of chooses in action.
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