TRESPASS

Trespass in tort law is a type of wrong which deals with wrongful interference of personal property. Usually, compensation for trespass is obtained in monetary terms. Trespass is broadly classified into 3 heads namely trespass to person, trespass to goods and trespass to land. Trespass is considered to be any wrongful act by a person who does not have an authority to enter the land of someone else. The law of trespass gives the right to the party who has suffered loss to lodge a civil suit in order to get the compensation for the damages caused due to the trespass. Under this article, the main focus will be on trespass to land.

TRESPASS TO LAND

The word ‘Trespass to Land’ stems from the dictum “cuius est solum, eius est usque, and coelum et ad infernos” which means that anyone who owns the land owns it all the way up to heaven and down to hell[1]. The interference with the possession of land without lawful justification is known as trespass to land. Trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass. Thus, trespass to land can be committed when one person enters the land of another or by staying in the property itself or doing an activity which affects the possession of that other person without any justification. What is necessary in trespass is that there must be invasion of private property, be it ever so minute, but without justification.[2] It is to be noted that 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. 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. In trespass, the injury must be direct. If it is not direct then it amounts to case of nuisance. It is believed that when a person enters a certain premise under the authority given by law and he abuses that authority, then, it will be considered an trespass ab-initio. This means that the law considers a person as a trespasser from the very beginning, even if he had entered lawfully there under the presumption that he had gone there with that wrongful purpose in mind. In order to constitute a trespass, entry is essential which must be without permission, intentional and voluntary. In the case of Basely v. Clarkson, it was held that the mistake of the defendant was taken as a trespass because while mowing the grass in his own land, he mistakenly crossed the boundary and mowed the land of his neighbour, believing it to be his. 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. In case of Gifford v. Dent [3], the tenant of the upper floor of a building affixed an ornamental sign to his premises and that projected over a forecourt occupied by another tenant. This was held to be trespass. In India, it is a punishable offence if a person willfully flies an aircraft in such a manner so as to cause danger to any person or his property, but it contains a provision of civil liability in tort under the English law.

REMEDIES

RE-ENTRY   

The person entitled to possession can re-enter the premises in a peaceful manner. In case of Hemmings v. stoke Poges Golf club,[4] the plaintiff was tenant of a cottage owned by the defendant. On termination of his service, the defendant required him to vacate the premises. The plaintiff refused to quit the premises after notice had been issued to him. The defendant then entered the cottage of plaintiff and removed him and the furniture. The court held the defendant for battery, assault and trespass but they were not held liable.

ACTION FOR RECOVERY OF LAND   

under Specific Relief Act, 1963, a person who had been dispossessed of certain immovable property without due course of law can recover the property without establishing any title. Section 6 of Specific Relief Act, 1963 provides that “if any person is disposed without his consent of immovable property otherwise than in due course of law, he or any person claming through him may, by suit recover possession thereof, not- withstanding any other title that may be set up in such a suit. No suit under this section shall be brought after the expiry of six months from the date of dispossession.

SUIT FOR MENSE PROFIT

This is an additional remedy against the trespasser apart from his ejectment. Here, the plaintiff can claim ‘mense profits’ for losses suffered by him during the period of dispossession. The plaintiff can also sue the defendant for ejectment as well as for mense profits in same action.

INJUCTION

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[5].

CONCLUSION

Trespass can be faced by people innumerable times in a day. The courts should evaluate four tests before deciding any case on trespass which are the nature and character of the trespass, the nature of the protected property, the amount and substantiality of the trespass, the impact of the trespass on the owner’s property interest.


[1] Sahejsuri1508-Trespass to Land, TRESPASS TO LAND – Aishwarya Sandeep, visited on 30-07-2021 at 18:06hrs.

[2] Entic v. Carrington, (1765) 19 Howell St Tr 1029: 95 ER 807

[3] 1926 WN 336

[4] (1920) 1 KB 720: 89 LJKB 744: 123 LT 479 (CA)

[5] Sahejsuri1508-Trespass to Land, TRESPASS TO LAND – Aishwarya Sandeep, visited on 30-07-2021 at 20:21hrs.

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