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Tort of 'Trespass'

Introduction

Trespass denotes interference without any lawful justification. It may be against person, land or goods. Trespass to a person denotes unreasonable interference with the body of a person which can be committed either by causing actual harm or by just causing an apprehension of force. It will include:

  • Assault-It means to create an unreasonable apprehension to threaten another person. It has a mere intention to apprehend the plaintiff. It usually precedes the Battery.

  • Battery- Battery means actual striking of force and causing harm to the plaintiff thereof. It must be without any reasonable and lawful justification.

  • False imprisonment- It refers to total restraint on any individual’s liberty, without sufficient lawful justification.

  • Trespass to land implies unreasonable interference over the possession of another’s land. Whereas the trespass to goods implies physical interference with the goods which are in the plaintiff’s possession.

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. Therefore, trespass to land means interference, direct or through some tangible object, to the possession of some other person without any lawful means or justification. It is an unlawful intrusion that interferes with one’s person or property through direct means. If interference is indirect and consequential it will constitute a nuisance, not trespass to land. It may be done by the person himself or through any other material things.


For example- a person entering into the house of another person without the permission of the owner of that house is trespass to the land. But if a person throws some stone on another’s land without the owner’s permission, this will also constitute the Tort of trespass against the land.


  • Wrong against possession

A person who has actual possession of the land can bring an action even against the true owner of the land if he enters the house without lawful justification. Trespass is a wrong against possession rather than ownership. Trespass is possible not only on surface of land, but on subsoil also. For an instance- taking minerals out of the subsoil. For trespass on subsoil, only the possessor of subsoil can bring an action.


  • Actionable per se

Trespass is actionable per se. the plaintiff need not show some special damages. It is proved that the defendant entered into the premises of the plaintiff either personally or through some material things, it will make an action for trespass to land. The intention of the defendant and use of force asserted by the defendant is not essential to prove. When a person enters a house under any authority but abuse that authority after entering and commit some wrong. The person will be considered as a trespasser-ab-initio to the property. Also, 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.


In order to constitute a trespass, entry is a pre-requisite.

  1. It must be without permission,

  2. The land must be in possession of the plaintiff, it may be actual or constructive.

  3. Entry must be voluntary which means not against a person’s will or by force.

  4. Entry must be intentional

  • Entry with a Licence

When a person enters a premise with some authority, that authority termed as a licence. Section 52 of the Indian Easement Act deals with the concept of licence. When the licence is revoked or its duration over, the licensee becomes a trespasser. For example- permitting a person to enter into a cinema hall with the ticket. The ticket is the licence to enter the hall. When the duration of the hall ticket is over the person become a trespasser. The licence can be considered of two kinds:

  1. Bare Licence- This is for a limited period of time. It can be revoked.

  2. Licence coupled with grant- This can’t be revoked.

Both of these can be better understood with the help of following illustration.

A licence to hunt in a man’s park and carry away the deer killed the next day to his own use. The act of hunting is a bare licence but the act of taking away the killed deer is grant.

Remedies

  1. Damages- the claimant is entitled to full reparation for his loss incurred. Generally, depreciation in the selling value is an adequate measure for destruction or damage to the subject matters in course of the tort of trespass. If there is an adverse effect on business due to trespass the claimant is entitled to recover the profits which were lost. This is called special damages.

  2. Injunctions- These are present for in the case of trespasses to restrain the trespasser. As it was seen in the case of Nelson v. Nicholson where the plaintiff had resolved a dispute over the boundary with the defendant. In resolving the dispute, it becomes apparent that the defendant had planted a tree on the plaintiff’s land. The plaintiff filed for a mandatory injunction against the defendant to get the bush removed.

  3. Action for Mesne Profits- A person who was wrongfully dispossessed of his land may claim compensation for the loss which he has suffered during the period of dispossession. An action to recover such compensation is known action for mesne profit.

  4. Distress Damage Feasant- It authorizes a person in possession of land to seize the trespassing cattle or other chattels and he can detain them until the compensation has been paid to him for the damage alone. Any chattel, animate or inanimate, may be detained.


Trespass to Goods

It consists in direct physical interference with the goods which are in plaintiff’s possession, without any lawful justification. Throwing stones on the car of another, shooting birds, beating animals are some of examples of trespass to goods. It is actionable per se i.e. without the proof of any damage. However, when the plaintiff has suffered no loss, he will only get nominal damages.


Essentials

  • Wrong against Possession:

Trespass is a wrong against possession rather than ownership, a person in possession can make an action even though somebody else is the owner of those goods. A person in possession can sue even without any proof of his title to the goods. A trespasser can’t take defence of ‘jus terti’ i.e. he can’t be allowed to say that some third party and not the possessor of it had a good title to the goods. A person either in direct physical or in constructive possession can bring an action if his possession is being interfered with. But the owner of goods who has given up his claim, can’t bring such action.


In Armory v. delamirie, the chimney-sweeper boy finds a jewel that he has given to the jeweller to give him value money of that jewel. But the jeweller refused. It was held that he is entitled to recover its full value from the jeweller on his refusing to return the same.

  • Direct Interference:

To constitute trespass to goods, there must be direct interference with the possessory right of another person over goods. It may be committed even with an honest intention. For example- if a person enters someone’s house believing it to be his house, the same shall fall under the category of wrong of trespass to goods.


  • Without Lawful Justification:

When the interference is without any lawful justification, an action for trespass lies. There is justification when the defendant has seized the plaintiff’s goods or cattle under the exercise of his right of distress damage feasant. There is justification when damage is caused to another person’s goods in exercise of private defence. If there is a lawful and reasonable justification on the part of defendant, the action for trespass can be brought against.


Defences

  1. License- When a person enters a premise with some authority, that authority termed as a licence. It can be valid defence in case of trespass. If the defendant has licence he can enter the premise lawfully. But this defence will not be available when the licence is revoked.

  2. Self-Defence- There is justification when damage or interference is caused to another person’s goods in exercise of private defence. It a valid defence. But it is not absolute. It must be exercised reasonably and proportionately. Excess of self-defence will make defendant liable for trespass.

  3. Distress Damage Feasant- It authorizes a person in possession of land to seize the trespassing cattle or other chattels and he can detain them until the compensation has been paid to him for the damage alone. Any chattel, animate or inanimate, may be detained.

  4. Authority of Law- Trespass can be justified if that act is done under any authority of law. It will be a valid defence.

  5. Inevitable Accident- In case of National Coal Board v. Evans, it was held that the inevitable accident is a valid defence for trespassing. Thus, defendant to liable for the same.

Conclusion

The law of trespass requires essentially only the possession of land by the plaintiff and just encroachment by some way by the defendant. There requires no force, unlawful intention or damage nor the breaking of an enclosure. Further, the land or goods in question must be in question which has been encroached upon essentially needs to be in direct possession of the plaintiff and not just mere presence on it. On satisfying that defendant wrongfully interfered with the possession of the plaintiff, damages may be awarded. Trespass is actionable per se, i.e. without the proof of any damages. Thus, it tries to protect the right of every individual to use his land, person, property in the manner he likes. Nobody is supposed to interfere with his right to use and possession over that property and person.

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