This article is written by Vanshika Singh Tomer, student of Allahabad University (law faculty).

Meaning of Trespass

Trespass to land means interference with the possession of land without lawful justification. In trespass, the interference with the possession is direct and through some tangible object. Trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass.

To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is necessary.

Trespass may be committed-

• by entering upon the land of the plaintiff, or 
• by remaining there, or 
• by doing an act affecting the sole possession of the plaintiff in each case without any justification.

Trespass could be committed either by a person himself entering the land of another person or doing the same through some material object, e.g., throwing stones on another person’s land. Allowing cattle to stray on another person’s land is also trespass. It is, however, no trespass when there is no interference with the possession.

If the interference is not direct but consequential, the wrong may be a nuisance. Eg.- to throw stones upon one’s neighbour’s premises is wrong of trespass; to allow stones/smoke from a ruinous chimney to fall upon those premises is the wrong of a nuisance. Planting a tree on another’s land is a trespass but if a person plants a tree over his land and its roots or branches escape on the land of the neighbour, that will be a nuisance.

Going beyond the purpose for which a person has entered certain premises- Perera v. Vandiyar or crossing the boundary where he has the authority to go amounts to trespass. Thus, if a person, who is allowed to sit in a drawing-room, enters the bedroom without any justification, the entry into the bedroom is a trespass. However, if the area to which a person is lawfully invited and one which is the prohibited area has not been properly marked, a person does not become a trespasser merely by going beyond the area of invitation- Pearson v Coleman Brothers.

Where there is a justification to enter the premises of another person, it is no trespass. In Madhav Vithal Kudwa v. Madhavdas Vallabhdas, the defendant was the plaintiff’s tenant. He was living on the first floor of the multi-storeyed building. He used to park his car in the compound of the plaintiff’s building. The plaintiff contended that the parking of the car in his compound without his permission was a trespass and sued for an injunction. It was held that the tenant of a multi-storeyed building has a right to use the compound, if any, around the building for parking of his car or other vehicles without causing any inconvenience to anybody and that right can be exercised without the permission of the landlord.

A man is not liable for trespass committed involuntarily, for example, when he is thrown upon the land by someone else but he is liable if the entry is intentional. Even an honest mistake may be no excuse and a person may be liable for the trespass when he enters upon the land of another person honestly believing it to be his own.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful. The trespasser is not allowed to take the defence of “jus tertii.”- title of 3rd person, ie. the trespasser cannot plead that as between some third party and the person in possession, the title of the third party is better. In Graham v. Peat, the plaintiff was holding the land under a lease which was void but he was entitled to bring an action for trespass against the defendant who had entered that land without lawful justification, because, “any possession is a legal possession against the wrongdoer.”

A person in possession, even if he himself is not the owner, can bring an action. An owner of the land, who neither has possession nor any immediate right to possess it, cannot bring an action for trespass- Baxter v. Taylor. A reversioner (a person who gets an estate back in reversion- an interest that reverts back to the grantor after a certain period) may, however, sue if by the trespass, injury of some permanent nature, which’ will affect his reversionary interest, is likely to result.

Trespass is possible not only on the surface of the land but it is also equally possible by an intrusion on the subsoil. Eg- Taking minerals from out of the subsoil. It is possible that the surface may be in possession of one person and the subsoil of another. In such a case, if the trespass is on the surface, the person in possession of the surface alone, and not the possessor of subsoil, can sue for that. Similarly, for trespass on the subsoil, the possessor of the subsoil alone can sue. However, digging a hole vertically in the land may amount to a trespass wherein the action can be brought by each one of them.

Probably, an inevitable accident will be a good defence as it is there in case of trespass to persons in chattels- domestic animals, cars, furniture- Holmes v. Mather.

Trespass ab initio — When a person enters certain premises under the authority of some law and after having entered there, abuses that authority by committing some wrongful act there, he will be considered to be a trespasser ab initio to that property. The plaintiff can, therefore, claim damages, not only for the wrongful act subsequently done by the defendant but even in respect of original entry which is now considered to be a trespass.

In order that the entry of a person to certain premises is treated as trespass ab initio, it is necessary that the defendant must have been guilty of a positive wrongful act (misfeasance) rather than a mere omission to do his duty (non-feasance). In Six Carpenters’ case, six carpenters entered an inn and ordered some wine and bread. After having taken the same, they refused to pay for that. They had done no act of misfeasance and mere non-payment being only nonfeasance, there was held to be no trespass ab initio.

Misfeasance must be such that will render the presence of the defendant on the premises as wholly unjustified. The case of Elias v. Pasmore illustrates the point. In that case, the defendants, certain police officers, entered the plaintiff’s premises to make a lawful arrest. There they removed certain documents without having any lawful authority for that, which was, therefore, an act of misfeasance. By their act of misfeasance, their presence there had not become wholly unjustified because the arrest, i.e., the lawful purpose, had yet to be accomplished. They were held trespassers only with regard to the documents which they had seized and not trespassers ab initio to those premises.

Entry with a licence

Entering certain premises with the authority of the person in possession amounts to a licence and the defendant cannot be made liable for trespass. Eg- Permitting a person to cut a tree on one’s land.

Section 52, Indian Easements Act, 1882 defines ‘Licence’ as under :

“Where one person grants to another, or to a definite number of other persons a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.”

After the licence is revoked, the licensee becomes a trespasser on land and must quit that place within a reasonable time. For the purpose of the right of the licensor to revoke the licence, the licences are considered to be of two kinds:

(i) a bare licence, and 

(ii) a licence coupled with a grant. 

A bare licence can be revoked, whereas a licence which is coupled with the grant cannot be revoked. Eg.- A licence to see a picture is a licence coupled with the grant and the cinemas authorities cannot revoke such a license. Similarly a licence to cut down a tree and carry it away is an example of licence coupled with a grant. In certain cases, the licensor, by the terms of the contract, express or implied, may agree that even a bare licence will also not be revoked.

In Wood v. Leadbitter, the plaintiff having purchased a ticket went to see a horse race and the defendants were the occupiers of the racecourse. While the races were still going on, the defendants asked the plaintiff to leave the premises and on his refusal to comply with mat, he was forcibly ejected by the defendant’s servants. The plaintiff brought an action for assault. It was held that the revocation of the licence was effectual and after the revocation of the licence, the plaintiff had become a trespasser and ejection of the trespasser out of the premises was not an actionable wrong- Obsolete now.

The decision in Hurst v. Picture Theatres Ltd. is just to the opposite effect. The plaintiff, after due payment, purchased a ticket to see a cinema show at the defendant’s theatre. He was wrongly suspected of having entered without a ticket and was asked by the management to leave the hall. On his refusal to do that, the defendant’s gatekeeper physically lifted him out of his seat and then the plaintiff himself quietly walked out of the cinema hall. The plaintiff then sued for assault and false imprisonment. The licence to the plaintiff, in this case, was considered to be with a grant and it was held that the same could not be revoked. The revocation being invalid, the plaintiff was not a trespasser to the defendant’s premises and as such, he was held entitled to recover substantial compensation from the defendant for assault. In this case, Buckley, L.J. was of the opinion that the decision in Wood v. Leadbitter was also an authority for the rule that a licence coupled with a grant was not revocable. There was considered to be no grant in Wood’s case for some other reason. The decision in Hurst’s case has been formally approved by the House of Lords in Winter Garden Theatre Ltd, v. Millennium Productions Ltd.

The Hurst’s case has been criticized on the ground that the damages would have been an adequate remedy and no order for specific performance would have been issued.

Trespass by Relations

One who has the right to possess is by legal fiction deemed when he entered to have been in position from the moment when his right of entry accrued. Thus, if an owner of property wrongfully ousted of possession manages to enter his premises, he will be deemed to have been in any position even during the period that is actually out of the possession and he can bring actions for trespass for wrong to the property during that period.

Actual physical contact is not necessary to constitutes de facto possession that is possession, in fact, eg books and clothes at home and not sea in a rly train.

Trespass over Airspace

A person has an ownership of not only the earth’s surface but also of anything below-subsoil or above-airspace, that surface which is capable of being reduced into private ownership.

In India, the Aircraft Act of 1934 makes it a punishable offence for any person wilfully to fly an aircraft to cause danger to any person or property in land or water or in the air but it contains no provision of absolute liability as in the English Acts.

Continuing Trespass

Every continuance of trespass is a fresh trespass, in respect of which a new cause of action arises from day to day as long as the trespass continues.

Defences to Trespass

Any justifiable entry or interference will negative liability for trespass. Justification by law, private defence, inevitable accident, license, necessity, parental authority, etc are well recognised lawful defences for trespass. For eg, Policeman can enter a private house through an open door late at night if he had reasonable grounds to believe that there is some disturbance there which requires immediate investigation.

Remedies

1. Re-entry

If a person’s possession had been disturbed by a trespasser, he has a right to use reasonable force to get a trespass vacated. A person, who is thus entitled to the immediate possession, uses reasonable force and regains the possession himself, cannot be sued for trespass. Ousting a trespass by a person having a lawful right to do so is no wrong. Thus, in Hemmings v. Stoke Poges Golf Club, the plaintiff had been in the employment of the defendants. On the termination of the service, the plaintiff was given proper notice to quit the house. On his refusal to do so, the defendants, by the use of reasonable force, themselves entered those premises and removed the plaintiff and his furniture out of it. The defendants were held not liable.

2. Action for Ejectment

Section 6, Specific Relief Act, 1963 gives a speedy remedy to a person who has been dispossessed of immovable property otherwise than in due course of law. 

“If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding 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…” 

This is a speedy remedy where the person, who had been dispossessed of certain immovable property, without due course of law, can recover back the property without establishing any title.

Even-a person claiming a superior title has no right to evict any other person without due process of law and if he dispossesses another by taking the law into his own hands, the persons dispossessed will be restored back the possession under the above-stated provision.

This section gives relief only to a person in lawful possession. A mere trespasser cannot have recourse to this provision.

3. Action for Mesne Profits- S.2(12) CPC

Apart from the right of recovery of land by getting the trespasser ejected, a person who was wrongfully dispossessed of his land may also claim compensation for the loss which he has suffered during the period of dispossession. Mesne profits refer to the profitts taken by the defendant during the period of his occupancy.

An action to recover such compensation is known as an action for mesne profits. If the plaintiff likes, he may sue in ejectment and mesne profits in the same action. His claim is not limited to the benefit received by the defendant from that land during that period. 

4. Distress Damage Feasant/Seizure/Detention

The right of distress damage feasant authorizes a person in possession of land to seize the trespassing cattle or other chattels and he can detain them until compensation has been paid to him for the damage done. The idea is to force the owner of the chattel to pay compensation and after the compensation has been paid, that chattel is to be returned. 

Any chattel, animate or inanimate, can be detained. The thing seized, therefore, may be a cricket ball, a football, a cow, a horse or even a railway engine.

In Boden v. Roscoe, the occupier of land was held entitled to detain a pony, which after trespassing had kicked his filly until compensation for the damage done was paid.

The right is available only when the object in question is unlawfully there on certain land. If therefore, a bull which is being conducted carefully through a street enters a shop through an open door, there is no trespass and there cannot be a right of seizure in respect of the animal.

There is no right to follow the things after it has gone out of those premises or to recover them after the owner has taken them away. It is also necessary that the thing seized must be the very thing which had trespassed and caused the damage. Thus, if the damage has been done by one animal, no other animal, even from the same herd, can be seized for the exercise of the right.