Tort is a civil wrong. Tort law does not have a codified substantive law; rather, it is developed through judicial decisions based on English common law concepts of justice, equity, and good conscience, with its origins in royal writs issued by the chancery. The tort of trespass is one of the oldest and most comprehensive writs, encompassing both criminal and civil aspects. Trespass occurs when someone directly interferes with another person or their property, infringing on that person’s ability to enjoy his land, own his goods, or move freely. Trespass is accountable per se. This means that the claimant only needs to establish that the trespass took place; no evidence of damage or injury inflicted by the defendant is required.
Trespass to property:
It is an immovable property-related tort. Every individual who lawfully owns land has the right to prevent others from entering his property. If someone enters his property without permission or authority, they will be considered trespassers. Trespassing is defined as an unauthorized voluntary entry onto another’s property or an unjustified interference with the possession of land. Trespassing is any intrusion onto a private property, no matter how minor.
In the case of Smith v. Stone[i], Smith (S) brought a suit of trespass against Stone (T) after T was carried onto S’s land by force of others, and was not there voluntarily. T was carried onto the land of P by force and violence of others; there was trespass by the people who carried T onto the land, and not by T. T claimed that he had a special plea of justification for the trespass, because he was carried onto S’s land by force, and violence of others, making the trespass of S’s land involuntary. The Court held that an involuntary trespass is not actionable. Only the trespass of the party, which T onto the land was actionable.
Modes of trespass to property:
- Trespass by unlawful entry:
It is the most prevalent trespassing method. A wrongful personal entry by the defendant on the plaintiff’s land amounts to trespass. The tort can be committed with the tiniest of boundary crossings. The defendant is still responsible for trespass if he knowingly enters a land he believes is his but turns out to be the plaintiff’s. The fact that the defendant made a reasonable error and was not negligent is immaterial. For instance, sitting on a fence amounts to trespass, and no actual damage need to be proved.
In Basely v. Clarkson[ii] , 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.
- Trespass by staying on land having asked to leave or after any permission has come to an end:
If a person who has legally entered another’s land continues to do so after his right of entrance has expired, he commits trespass. His misbehavior stems from the wrongful nature of his initial entrance, and he is liable for damages not just for the entry itself, but also for any subsequent activities.
A licensee whose license has been revoked or has expired may be sued as a trespasser if he refuses to leave after being asked and a fair amount of time has passed as held in Minister of Health v. Bellotti[iii].
- Trespass by placing things on the land:
Any trespass or constructive intrusion into another’s property is termed trespass. For instance, throwing stones or materials over neighboring land, it may also be a gas or invisible fumes. Driving a nail into a person’s wall, placing anything against the plaintiff’s wall, planting trees in plaintiffs land, or placing any chattel upon the plaintiffs land is trespass by interference on the land of another person.
People are confronted with trespass on a day to day basis, but it is critical to fully understand the nature of the trespassed act, property, loss, and impact on the plaintiff. If the act is inherently suggestive of a wrongful incident, willfully done to limit the enjoyment of the right to exclude from private property, then all available remedies for recouping the harm should be evaluated.
- Pushkar Thakur, Trespass: Tortious Liability, Legal Service India, http://www.legalservicesindia.com/article/202/Trespass:-Tortious-Liability.html.
- Anonymous, Trespass to Land: Definition, Scope, Remedies, Defences, Law Hub, https://www.lawhub.com.ng/trespass-to-land-definition-scope-remedies-defences/.
- Diva Rai, Trespass to Land and Dispossession, Blog iPleaders, Trespass to Land, Aerial Trespass and Dispossession (ipleaders.in)
[i] Smith v. Stone, (1647) Style 65.
[ii] Basely v. Clarkson, (1681) 3 Lev 37.
[iii] Minister of Health v. Bellotti, (1944) KB 298.
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