This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in brief the various categories of torts relating to the immovable property along with the remedies and defences available to the plaintiff and defendant respectively.
A is a farmer and his farm is next to the land of B who has cows. One day, B’s cows enter the farm of A and cause damage to his farms. Here the owner of cows i.e. B will be liable for the tort of trespass which is a tort relating to immovable property. In order to show that a tort of immovable property has been caused, one needs to fulfil the following conditions:-
- There is a right to hold or possess
- There is either disturbance or usurpation(seize) of such right
- Such disturbance or usurpation may be caused by actual physical damage to property or by interference with or impairing of the enjoyment of it
Torts relating to immovable property consist of the following categories:
- Injury to reversionary rights
- Wrongs to natural rights and easement
There are two kinds of trespass:
- Trespass quare clausum fregit- unlawful entry upon land
- Trespass de bonis asportatis- the wrongful taking of goods
In order to constitute the tort of trespass one does not need to prove-
- Unlawful detention
- Actual damage
- Breaking of an enclosure
Trespass is actionable per se which means it does not need any proof of actual damage caused to the property.
Trespass may be committed by any of the following ways-
- By entering wrongfully upon the land of the plaintiff– the slightest crossing of the boundary is sufficient for committing trespass. A man is not liable for trespass committed involuntarily, for instance when he is thrown upon the land by someone else (Smith v. Stone). Moreover, it is presumed that if a person owns the surface of a piece of land then he owns all the underlying strata.
- By remaining there in the land– if a person has lawfully entered on the land of the plaintiff but remains there even after his right of living there has ceased commits trespass; for instance, a tenant living on the land of the plaintiff even after the time period of the agreement is over.
- By interfering with the land or by constructive entry– every interference with the land of the another is deemed to be a constructive entry which amounts to trespass. For instance, throwing a stone upon the plaintiff’s land or piling of garbage against his wall is a trespass to land.
Remedies available to the plaintiff
A person whose land is trespassed has the following remedies:
- An action can be brought by him against the wrongdoer.
- Force can also be used by the plaintiff in order to defend his possession or eject the trespasser from his land.
- An injunction can also be obtained by the plaintiff from the court under the Specific Relief Act, 1963 to restrain a continuing or threatened trespass.
Defences available to the defendant or the wrongdoer
- Leave and license
- Authority of law
- Act of public necessity
- Re-entry on land
- Re-taking of goods and chattels
- Abatement of nuisance
- Special property or easement
When a person has the authority of the law to enter upon the land of the another but later is guilty of an act such as misfeasance or misconduct making his original entry tortuous. Here he is liable for damages for both entering the land and further misconduct.
The following conditions must be fulfilled in order to apply the doctrine of trespass ab initio-
- The authority must be given by law.
- The subsequent act must be misfeasance.
The Six Carpenters’ Case 1610
In this case, the six carpenters entered an inn by the authority of law and consumed food and had fine but refused to pay. They were held not liable under this doctrine and the court laid down three major principles–
- If a man abuses an authority given to him by law, he becomes a trespasser ab initio.
- In an action of trespass, if an authority is pleaded, the subsequent abuse of that authority may be removed.
- A mere non-feasance does not account to such abuse as renders a man a trespasser ab initio
Injury to Reversionary Rights
A reversioner is a person who has a lawful interest in land but not its present possession, e.g. landlord and a reversioner interest is any interest, vested or contingent, the enjoyment of which is postponed. Reversionary interests are injured by either the strangers or by tenants.
It is spoil or destruction of houses, gardens, trees or unlawful damage caused to the immovable property by the person who was just given lawful possession of that property. Such damage must be of permanent nature and should cause prejudice to the owner or the reversioner.
Essentials of waste
- An act or omission
- Such act/omission must be done by the tenant or anyone in possession
- It must cause prejudice to the owner/reversioner
Damages & Injunction for waste
In a suit against waste, the plaintiff may recover the actual damage caused to the immovable property and can also obtain an injunction on the actions of the wrongdoer of the defendant.
An owner is said to be dispossessed of his immovable property when the defendant does an act which declines the overall dominion of the plaintiff over the property. An owner can also be said to be dispossessed of his property when the defendant acquires settled possession of the land with the intention of acquiring exclusive control over the immovable property of the owner (Sundara Sastrial v. Govinda Mandaroyan, 1908).
Remedies available to the owner for the dispossession caused
- To recover possession of the land– action can be brought by the owner of the immovable property against the defendant to recover the possession of the land. In India, one can file a suit under S.6 of the Specific Relief Act, 1963 for recovering the possession which was dispossessed because of the acts of the defendant within a period of six months.
- Jus tertii– the owner can also recover the possession of the immovable property through the doctrine of jus tertii i.e. by showing that the plaintiff has a better right than the defendant to acquire the possession of the property.
Defences available to the defendant in a suit filed by the owner
- Jus tertii– that the defendant has a better title than the plaintiff
- That the plaintiff’s title over the immovable property comes to an end as the defendant has held or enjoyed the interest in the immovable property for twelve years or more.
- The defendant can also plead under S.5 of the Specific Relief Act, 1963 that the plaintiff was not in possession within six months of the date of filing the suit or he himself was dispossessed in due course of law.
Wrongs to Natural Rights and Easements
An easement right is a non-possessory right to use the property of others without having the possession of such property. When any such right is infringed or interfered by any stranger or owner of that property then that amounts to tort and is actionable.
Remedies available for infringing the right of easement
- Damages to compensate for the injury or the loss
- The injunction obtained from the court to prevent such repetition.
There are certain natural rights which are attached to every land and are necessary for the peaceful enjoyment of the immovable property. One can enjoy his property in any way he wants but cannot infringe the legal rights of the other by making such use of his property. Such natural rights are:-
- Right to support
- Right to water
- Right to light
- Right to air
- Right of way
- Right of privacy
- Right of prospect
- Right of common
Right to support
This right can be divided into three categories:
- Right to support land by land – each and every part of the land has a natural right to be supported by the adjacent or subjacent land. A right to be supported by an adjacent land is known as the right to lateral support and a right of support by the subjacent land is known as the vertical support. Every owner of a property is entitled to a right of lateral support to the extent it is necessary to sustain his own land in a natural land.
- Right to support of buildings by land- if the land is not expressly granted for building purposes but is weighted with buildings then the surface owner has no right to additional support which is necessary for the maintenance of buildings. Support of buildings by land may be either:
- Laterally by adjacent soil
- Vertically by subjacent soil
- Right to support buildings by buildings– this right is not a natural right but can be acquired by either grant or prescription or when both the buildings are owned by one person. Damage is necessary to give the right of action to the person.
Right to water
The right to water of a person having possession of the immovable property can be infringed by any of the following ways-
- Wrongful obstruction of water
- Wrongful pollution of water
- Wrongful obstruction by a stream
Right to light
An owner of a house is entitled to sufficient light as may be necessary for the enjoyment of his house. In order to bring an action against a person, it must be proved that he has caused substantial deprivation of light to the house of the plaintiff. The rule of 45 degrees is usually applied here by the courts. According to this rule when the height of the wall of obstruction which is built opposite to the ancient lights (house of the plaintiff) is not greater than the distance between it and the ancient lights then in the eyes of law no such right is infringed.
Right to air
The right to air is an easement and in order to file a suit against the defendant for obstruction of air, the plaintiff must show that there is some danger to his health. Such right is not violated until the obstruction is such that it is obstructing more air than needed for the ordinary purpose.
Right of way
A right of way is not a natural right but it can be acquired by-
- Immemorial custom
Right of privacy
Right to privacy is not an inherent right as right to light and right to air. English law does not even recognize such right but in India, under Article 21 of the Constitution of India, Right to privacy is recognized as the fundamental right of each and every citizen of India.
Right of prospect
In India, the law does not recognize a view or prospect from a house as an easement right. No period of enjoyment over an immovable property will give a person right of action against another who on his land erects a structure or plants trees which obstruct the view or prospect of the other. Where obstruction does not affect the right of access or any other damage to his building or business; it was held that the suit was not maintainable (Gopalkrishna v. Narsimham, 1958).
Right of common
A right of taking some natural part of the produce of land belonging to another by the person who is not the owner of that land such as right to pasture or right to fish. Any infringement or disturbance of such right is an actionable wrong.
The right to take some part of the soil or some part of the natural produce or animals existing upon it from the servient tenement by another is referred to as the Profits-a-Pendre. In India, such right is categorized into the following categories-
- Right of common
- Right of ferry
- Right of market
Nuisance is broadly categorized into two categories:-
- Public Nuisance– it is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property. To make nuisance an actionable tort one must satisfy the following two essentials-
- Wrongful act
- Damage or loss or inconvenience or annoyance caused by such act to another.
- Private Nuisance– it is unauthorized use of one’s own property causing damage to the property of another or some unauthorized interference with the property or the propriety rights of another.
Remedies available to the plaintiff
- Abatement- it means the removal of a nuisance by the party injured or the plaintiff. The removal must be peaceful and without danger to the limb and if it is necessary to enter another’s land or property prior notice should be given to that person.
- Damages– it is to be noticed that every day the nuisance continues, a fresh cause of action arises for which future damages may be recovered. If the injury is caused to the neighbour while a person is making use of his property is such way then he is eligible to damages from that person for the injury caused.
- Injunction– in order to obtain an injunction from a court it must be shown by the person that the injury caused cannot be measured in terms of damages or cannot be compensated through damages.
Defences available to an action for nuisance
- Grant- it is a valid defence to an action for the nuisance that the said nuisance is under the terms of the grant.
- Prescription– the right to continue private nuisance may be acquired as an easement of prescription if it has been peacefully and openly enjoyed as an easement or as a right without interruption for 20 years.
- Statutory Authority– when the statute has authorized doing a particular act or the use of land in a reasonable way provided that reasonable precaution has been taken in exercising such statutory authority.
Torts relating to the immovable property has been categorized into different categories and all of them are dealt in different ways. Some of them are interrelated to each other and therefore they are needed to be read together with such as trespass and nuisance. Each of the tort mentioned above has defences and therefore the defendant can avoid the suit if he falls under those defences. Though the remedies and defences given under every tort are given considering that no party is prejudiced by the act of another.