Trespass6 min read

By- Anshul Singh

Trespass to Land 

Definition:  Trespass to land means interference with possession of land without any lawful justification. In trespass interference with other land is direct. If it is indirect than it is wrong of nuisance.

When a person goes beyond a certain limit or beyond a boundary where he does not have the authority to go is said to commit Trespass. 

Example:  If someone throws a rock on another person land than it is wrong of trespass but if rocks from an old chimney fall on another person land that it is wrong of nuisance.

Trespass could be committed either through the person himself by entering into the land of another person or through by a material object for example throwing of stones, tree branches entering the premises of another.

Trespass is wrong against possession rather than ownership

Trespass ab initio: when a person enters a premises under the authority and later on abuses that authority by doing some wrongful act in such cases he will be considered trespasser ab initio which means trespasser from the very beginning.

The term trespass refers to an act of intrusion into another person’s property. Ab initio is a Latin term meaning, “from the beginning.” A person is said to have committed trespass ab initio, when he/she has abused the authority granted by law to enter a property or land.

So that the entry of a person to certain premises is treated as a trespass ab initio non-feasance i.e. omission to do something is not enough it is necessary that the defendant must have been guilty of a positive act of misfeasance,

Case law

Six carpenter case

In this particular case, six carpenters entered an inn had wine and food, when they were asked to pay the bill they refused. The court held that they had done no act of misfeance and mere act of nonpayment of bill is only non-feance they were not held trespass ab inito

Conditions for constituting trespass ab initio are:

  1. The authority abused must be an authority granted by law and not by an individual.
  2. There must be some positive act of misconduct, and not a mere omission or neglect of duty. 

Remedies

The person whose land is infringed may bring an action for trespass against the wrongdoer. He may also forcefully defend his possession against a trespasser; he may forcefully eject him.

  • Re-entry

If a person possession has been disturbed by a trespasser he as a right to use reasonable force to get trespasser evicted. But he can use that amount of force which is reasonable and for use of the force he cannot be sued.

  • Action For ejectment

Section 6 of the specific relief act gives a speedy remedy to a person who has been disposed of immovable property otherwise than in due course of law

Damages

A claim for damages to recover any financial loss suffered as a result of an infringement may be made or 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 disposal or the right to use it exclusively.

READ ALSO: REMEDY IN LAW OF TORT




DEFENCES

1. Licence

A licence is a permission to enter land and maybe express, implied or contractual. A dictionary definition is as follows: “In land law, a licence is given by X to Y when X, the occupier of land, gives Y permission to perform an act which, in other circumstances, would be considered a trespass, e.g., where X allows Y to reside in X’s house as a lodger. A bare licence is merely gratuitous permission. A licence may be coupled with an interest, as where X sells standing timber to Y on condition that Y is to sever the timber; in this case the sale implies the grant of a licence to Y to enter X’s land. 

2. Rights of entry

A person may exercise a lawful right of entry onto land, for example:

1. A private right of way granted to the defendant;

2. A public right of way;

3. A right given by the common law, such as the right to abate a nuisance; and

4. A right of access given by statute

The following defences are also available as a defence for trespass-

· Exercise of easement and prescription

· Leave and License

· Acts of Necessity

· Self-Defense

· Authority of Law  

· Re-entry on land 

· Re-taking of goods and chattel

· Abating a nuisance 

Trespass to goods 

Meaning: Trespass to goods refers to the unintentional or intentional interference with the goods which are in the possession of others, without any lawful justification can be termed as trespass to goods. It consists of direct physical interference with the goods which are in the hands of the plaintiff without any lawful justification. It is of numerous forms such as throwing stones on car, shooting birds, beating animal etc. 

Trespass to goods is actionable per se, that means without the proof of the damage. Hence, if the plaintiff has suffered no harm he will have a chance to claim nominal damages.

Essential Element

  • Direct Interference:

Direct physical interference without any lawful justification is a trespass. The wrong may be commuted intentionally or even by an honest mistake, A person driving away a car mistaking it for his car is a trespass even though the plaintiff does not have a good title to the same.

  • Without Lawful Justification

There is just needed when the defendant has seized the plaintiff goods under the exercise of his right of distress damage feasant. When interference is an unlawful action for trespass lies. There is also a justification when trespass to goods is done in self-defence or to protect one’s body or property.

1. Detnue:

When the defendant is wrongfully keeping the goods of the plaintiff and is refusing to deliver them the plaintiff can seek court for the return of the goods.

2.    Conversion: conversion is also known as trover it consist of wilful and without any lawful justification dealing with goods.

Defences

1. Consent

If the defendant did not have the consent of wrongfully taking the possession of the goods of the Plaintiff he will not be held liable for the tort he had committed.

2. Self-defence

There is also no trespass to goods when trespass to goods is done in self-defence or to protect one’s body or property.

3. Under the Police and Criminal Evidence Act 1984, those with lawful authority can interfere with property and land within certain parameters – to execute a warrant, for example.

Consent and contributory negligence are available for trespass to land. Consent can operate within the trespass of goods, but as per s.11 of the Act, contributory negligence is not a defence where interference goods is intentional.