Trespass

MeaningTrespass means to enter into another’s land or

property without his permission or without lawful justification

It is a wrongful interference with the possession of someone’s personal property

It is an unlawful interference with one's person, property or rights.

With reference to property, it is a wrongful invasion /attack on another's possession.

Halsbury's Laws of England explains what constitutes ‘trespass’ - Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done.

Trespass In Laxmi Ram Pawar v. Sitabai Balu Dhotre, (AIR

2011 SC 450) SC explained trespass as prevailing under common law. It is an unlawful interference with one’s person, property or rights. With reference to property, it is a wrongful invasion of another’s possession.

Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased.

It signifies any transgression or offence against the law of nature, of society, or the country in which we live; whether it relates to a man's person or his property.

E.g., beating another is a trespass, for which an action of trespass in assault and battery will lie; Taking or detaining a man's goods

Types of Trespass

TypesThere are three types of Trespass: -

a) Trespass to Person;b) Trespass to Land;c) Trespass to Chattel/Movable

Property

a)Trespass to the person, involves six separate trespasses: threats, assault, battery, false imprisonment, wounding and maiming.

b)‘Trespass to land’ means to enter into another’s land without his permission or without lawful justification

Trespass To LandThe interference with possession of the land is direct

through some tangible object.If the interference is not direct, it will be actionable as

a tort of nuisance and not trespassE.g., someone throwing stones upon his neighbour’s

land is ‘trespass’ but to allow stones to be thrown from a ruinous chimney is ‘nuisance’

If a person plants trees over his own land & its roots & branches grow & extend on the land of the neighbours, then it will be actionable as ‘nuisance’

Dr. Winfield has observed that for the tort of trespass the injury must be direct & if it is indirect then it will be tort of nuisance & not trespass

Trespass To LandTrespass can be committed in two ways: -

a) either by the person himself entering the land of another person; orb) entering the land of another through some material tangible object such as stones or plants or allowing cattle to stray on another’s land without any lawful justification

It is not necessary for the plaintiff in an action for trespass to prove the malice or unlawful intention of the defendant, nor it is necessary for him to show any damage or injury.

Trespass to land besides being a tort is also an offence punishable under the Indian Penal Code, 1860 under Section 441.

Section 441, IPC Criminal Trespass

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person ,or with intent to commit an offence , is said to commit “criminal trespass”

• The offence of criminal trespass is punishable with imprisonment which may extend to three months or with fine, which may extend to five hundred rupees, or with both (Section 447, IPC).

Essentials1)Plaintiff must be in exclusive

possession of the land;2)Defendant’s entry into that land;

and3)Such entry of the defendant should

be without any lawful justification.

Essentials Thus, it would be seen that where there is a

valid reason for lawful justification for a person’s entry into the land which is in possession of another, it will not be a wrongful act or an actionable tort of trespass

E.g., a person may entry into another’s land to retake his own goods or chattels; or in exercise of his public right (eg., policemen or fireman)

Trespass to Land It is important to note that trespass is a wrong

against the possession of land, i.e., immovable property and has nothing to do with the ownership of the land.

The owner can bring an action for trespass against a person who interferes with the owner’s right of exclusive possession, whether by actually dispossessing the owner or by intruding upon the land or by doing an act affecting the sole possession of the owner, in each case without lawful justification.

What is necessary for an action for trespass is that there must be invasion on private property, be it for a minute but without lawful justification.

Trespass in Airspace The presumption here is that a person in possession of

the land also has the possession on the sub-soil underneath that land and the aerial space over the land upto the sky.

But his right is restricted to such height as is necessary for the ordinary use and enjoyment of his land, and the structures on it and therefore, an air flight

Thus, the projection of an advertisement board into the airspace on the plaintiff’s shop was held to be trespass in Kelsen v. Imperial Tobacco Co. (1957) 2 QB 334)

Trespass in Airspace Section 17 of Indian Air Craft Act, 1934: No suit shall be

brought in any Civil Court in respect of trespass or nuisance by reason only of the flight of aircraft over any property at a height above the ground which having regard to wind, weather and all the circumstances of the case is reasonable, or by reason only of the ordinary incidents of such flight.

However, if it is deliberately flown low to cause damage to someone’s land, it is actionable as trespass & attracts a punishment upto 6 months & fine upto Rs 1,000 or with both.

Trespass on Highway The user of highway for the purpose of going from one

place to another is not a trespass But when a man’s land spreads over the highway, the

soil over such land is presumed to be owned by him. An action for trespass can be maintained only when the

trespasser makes an unjustifiable and unreasonable use of the land.

In Harrison v. Duke, (1893) 1 QB 142) the court held that the public’s interest in the highway is to have the right of passage. When a person on the highway uses it in a reasonable & usual way, he cannot be said

Trespass under Valid License Where a person enters upon a land under a valid

license or lease & remains there even after the expiry of the period of license or lease, he becomes a trespasser & can be ejected by giving a prior notice.

Here the person who misuses such permission becomes a trespasser ab-initio, as if his original entry into that land was unauthorized.

It shall be treated as if it was never granted. Same rule applies to a person entering into another’s

land, e.g., entry of policeman to arrest someone; landlord’s entry for collection of rent from the tenant.

Trespass under Valid License But if in such a situation an assault (unlawful act)

during the arrest is committed by the policemen in that house, then he shall be liable for trespass ab-initio because of the abuse of the entry or license.

An important case is of Six Carpenters case, where six carpenters entered in a hostel & ordered for some wine and bread.

After having the same, they refused to pay for it. It was held that they were not trespassers ab-initio

because their act of non-payment was mere non-feasance (failure to perform an act which is required by law).

Trespass under Valid License

If they would have committed some overt act of misfeasance (an act that is legal but performed improperly) such as stealing or destroying something, that will make him trespasser ab-initio.

Trespass under Valid License In Elias v. Pasmore, (1934) 2 KB 164) certain police

officers entered plaintiff’s premises to make a lawful arrest. There they removed certain documents without having any lawful authority.

This was held to be an act of misfeasance but their presence had not become wholly unjustified because the arrest was for lawful purpose.

The court held them as trespassers with regard to the documents which they had unlawfully seized & not trespassers ab initio in relation to the premises.

Continuing Trespass Trespass over the land or by placing things on

plaintiff’s land, is a tort of continuous nature & gives rise to actions from day to day so long as it continues.

E.g., If a man builds a wall or throws a heap of stones on his neighbour’s land, it will be a continuing trespass

Here the right to sue will continue from day to day till the nuisance is removed.

A continuing trespass is a new trespass each day until the cause of trespass is removed.

Cattle Trespass If a man’s cattle, poultry, sheep etc. trespass into

another’s land, the owner of the cattle is liable for trespass and to pay the damage unless he can show that the person aggrieved by cattle trespass failed to fence his land properly and he was contributorily negligent for trespass.

The rule is not applicable to cattle straying on a road and to dogs and cats.

A man who brings animals on road is bound to take care of them. The law is contained in the Cattle Trespass Act, 1871.

Remedies

Remedies 1) Re-entry: - A person who has been wrongfully

dispossessed of his land by a trespasser has the right to re-enter his land using reasonable force.

Eg., A tenant was kept by the landlord for 11months only. After the expiry of 11 months, the landlord has a right to serve a notice on the tenant to vacate the house. If the tenant does not do so, then the landlord can himself enter the house & turn the tenant out of the house.

2) Suit for Ejectment: - where the plaintiff/landlord himself is not capable of re-entering into his premises by expelling the trespasser, legal remedy in the form of filing a suit for trespass can be filed against the trespasser.

Remedies The legal remedy of filing a suit for ejectment is

available under Section 6 of Specific Relief Act, 1963, which says that “If any person is dispossessed of immovable property without his consent, otherwise than in course of law, he or any person claiming through him, may by filling a suit recover possession.

No suit under S.6 shall be brought after the expiry of six months from the date of dispossession.”

3) Expulsion of Trespasser: - A person unlawfully dispossessed of his land or premises may, as early as possible, restore possession by expulsion of the trespasser by using reasonable force.

This right is available to legal owner of land only.

Remedies 4) Action for Mesne Profit & Distress Damage Feasant: - Plaintiff can claim mesne profit (profits which trespasser enjoyed during unlawful occupancy of plaintiff’s land or premises) for the period during which he was dispossessed of his land by the trespasser. It is an extra-judicial remedy available to the plaintiff.

Defences

Defences1) Leave & Licence: - A person does not remain a

trespasser if he is on land with the permission of the occupier of the land.

A licence is a permission without which the entry would be treated as unlawful & will amount to trespass.

2) Legal or Lawful Justification: - where defendant entered plaintiff’s land under a legal authority or in execution of legal process, then it will not be deemed to be an act of trespass.

E.g., Policemen entering the house for arrest; fireman entering to stop fire; landlord entering to evict tenant or to collect rent from the tenant.

Defences3) Re-entry upon land & recapture of chattels: - defendant entered plaintiff’s land from which defendant was wrongfully dispossessed, which does not make him a trespasser. The defendant here re-entered plaintiff’s land to take back his own chattel.4) Abatement of Nuisance: - defendant entered plaintiff’s land to abate (remove) the cause of nuisance, e.g., cutting of overhanging branches of trees from neighbour’s land; reducing the volume of DJ playing in plaintiff’s house.5) Necessity: - there may arise some situation where the defendant has to enter into other person’s land out of urge or necessity. E.g., neighbour’s house caught fire; cow entered in neighbours land & destroyed crops.

Trespass to Movable Property

Trespass to Movable Property Wrongful interference with goods which are in

plaintiff’s possession is known as “Trespass to moveable property or goods or chattel.”

It implies actual taking of or direct and immediate damage to another person’s goods or movable property.

An action will lie for causing injuries to domestic animals or birds of plaintiff.

The tort of trespass is actionable per se, i.e., plaintiff is not required to prove any damage or injury.

Essential Elements1) Possession of Goods or Chattels: - A person in

possession of land is generally considered to be in possession of all the things on the land, e.g., clothes, furniture, utensils, decoration items etc.

A finder of goods gets their possession & can sue any person, other than the owner, committing trespass on them & takes them away from him.

In other words, the finder of goods has a better title to goods found by him against all others excepting the true owner.

The essence of trespass to goods being wrongful dispossession, i.e., injury to his possession, he can claim his immediate possession from the trespasser by filing a suit against trespasser.

Essential Elements2) Wrongful disturbance of possession by direct interference of defendant: - There is direct interference of defendant/trespasser in plaintiff’s possession of goods & that too without lawful justification.Such interference must be intentional, negligent or even a bonafide mistake.3) Without lawful justification: - Where there is a reasonable justification for the removal of goods from a person’s possession, it will not be actionable as trespass to goods. E.g., Defendant has seized plaintiff’s goods or cattle to exercise his right of distress

Defences

Defences1) Self-Defence2) Exercise of ones lawful rights: - taking of

possession of another person’s goods in exercise of ones right to a lawful distress, is a valid defence

3) Obedience to some legal or statutory authority: - Any goods taken in exercise of some statutory authority or execution of a legal process, is a valid defence. E.g., policeman or custom officers seizing some goods of plaintiff, are legally authorized by law for the same.

Defences4) Plaintiff’s own negligence: - If defendant parks his car in plaintiff’s premises or garage, then plaintiff has the lawful right or a valid defence in removing the car from that place by using reasonable force. 5) Estoppel: - Plaintiff is denied to move back from his own words which he has already admitted & are established as a truth, by the plaintiff himself. E.g., Plaintiff told his neighbour to cut vegetables from his land whenever required by the defendant, now if defendant enters his land & does the same, he can take the plea of estoppel.

THANK YOU

Register with legaldesire.com to access

more course material