This article has been written by Diva Rai, a student of Symbiosis Law School, Noida. In this article she discusses the meaning of trespass to land, its kinds , difference between trespass and nuisance, aerial trespass and the Indian law on aerial trespass, dispossession, its prerequisites and remedies.

 Meaning of Trespass

Black’s Law Dictionary defines trespassing as an unlawful act committed against the person or property of another person; in particular, unlawful entry into the real property of another person. Trespass means the wrongful disturbance of possession of land or goods of another person. A person who intentionally and without consent enters another person’s property is a trespasser. It signifies an infringement or infringement of a right. 

Examples:

• Continuing Trespass
• Criminal Trespass
• Innocent Trespass
• Joint Trespass

Camden, LCJ said that “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing.”

Kinds of Trespass

There are two kinds of trespass:

• Trespass quare olasum fregit– this means the entry on another person’s land.
• Trespass de bonis asportatis– this means the taking away of another person’s goods.

Trespass to Land

Trespass to land stems from the dictum “cuius est solum, eius est usque, and coelum et ad infernos”–  meaning that anyone who owns the land owns it all the way up to heaven and down to hell.

Land is far more than merely the physical soil. Land ownership has been granted the rights to all natural resources on the land. 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 or depth in relation to the normal use of the land.

In the case of trespass to land, the unlawful land infringement must be direct, intentional and actionable in itself. The entry must be intentional in the sense that the trespasser intended to go onto that particular land. The trespasser’s intention to trespass is not at all necessary. Illustration: A parachutist’s entry into the land accidentally blown by the wind is unintentional and there is no liability for trespass.

How is Trespass to Land committed?

Trespass to land may be committed in three situations. In each case, the entry must be without justification. The cases are:

Entering the land of the plaintiff:

• In order to constitute a trespass, entry is essential.
• Entry must be without permission.
• The land must be in possession of the plaintiff, it may be actual or constructive.
• Entry must be voluntary which means not against a person’s will or by force.
• Entry must be intentional.

If the defendant consciously enters a land that he believes is his own but that turns out to be the plaintiff’s land, he is still liable for trespass. It is irrelevant that the defendant made a reasonable mistake and was not negligent.

Basely v. Clarkson [1]

When 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. However, if the entry is proven to be involuntary then it is not a trespass.

Smith v. Stone [2]

If someone else throws a person on the land of someone else, i.e. his entry is unintentional then he will not be liable. There is no act of entry by the defendant in such a situation. It is a general presumption that a person who owns the surface of land owns all the underlying strata. Thus at the instance of the owner of the surface, an entry beneath the surface at whatever depth is an actionable trespass. But in some cases, it is possible that the underlying strata may be in the possession of a different person.

Illustration: When a person who is not in possession of the surface holds mining rights: if the surface of the land is in possession of A and the subsoil in possession of B, the surface entry will be an infringement of A and the subsoil entry will be an infringement of B.

Note- Entering a land prior to the complete transfer of its title to the acquirer shall be considered a trespass.

Public streets, including pavements, are primarily dedicated to public use for passage purposes and may not be used for private residence, private business or as a prayer ground for a particular community.

By staying on land having asked to leave or after any permission has come to an end:

If there remains a person who has legally entered another’s land, he commits trespass after his right of entry has ceased. His misconduct relates back to making his original entry tortuous, and he is liable for damages, not just for the entry itself, but for all subsequent acts. This is referred to as trespass ab initio and the abuse will make the original entry illegal.

Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath [3]

Although entry into the property may be legal, therefore, if possession continues even after permission has been given, it may amount to trespass ab initio. The corresponding concept of continuity of a civil mistake can be found in the Tort Law. Trespass in torts can be continued one. Again, if the entry was legal but is subsequently abused and continued after the permission has been determined, the infringement may be ab initio.

Minister of Health v. Bellotti [4]

A licensee whose license has been terminated or is extinguished by expiry may be sued as a trespasser if, upon request, he does not vacate and a reasonable time has elapsed.

Trespass by interference with the land of another :

Any interference with another’s land is considered to be a constructive entry and trespass. Example- throwing stones or materials over neighboring land, it may also be a gas or invisible fumes. Driving a nail into a personʼs wall, placing anything against the plaintiffʼs wall, planting trees in plaintiffs land, or placing any chattel upon the plaintiffs land is trespass by interference on the land of another person. It was said in Abdul Gani v. Sadu Ram and Others [5] that discharge of filthy water from a spout in the defendant’s house on the plaintiff’s land is trespass.

Difference Between Trespass and Nuisance

Trespass	Nuisance
By the nature of injury, if the injury is direct then it is Trespass.	If the injury is consequential, then it is Nuisance.
Trespass is actionable per se.	Nuisance is actionable only on proof of damage.
Trespass describes prohibited conduct.	Nuisance describes a type of harm that is suffered.
Trespass requires direct entry into the property of the plaintiff.	Nuisance is indirect and can take place from outside the property of the plaintiff.
A person only in the direct possession (including tenant) of land can sue.	A person who is indirectly affected may sue.
Illustration: Throwing stones on the neighbor’s land.	Illustration: If the roots of a tree planted on the defendant’s land undermine the foundation of neighbor ‟s building then it is nuisance.

Aerial Trespass

The landowner has the right to the airspace above the surface ad infinitum. The ordinary rule is that whoever has the solum, whoever has the site, is the owner of all up to the sky and down to the earth’s center. In modern times, 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.

Kelsen v. Imperial Tobacco Co. Ltd. [6]

An advertising sign erected by the defendants over the plaintiff’s single storey shop projected into the airspace. The defendant argued that a superincumbent airspace invasion was not trespass, but a nuisance alone. The projection into the airspace of the plaintiff was held to be a trespass and not a mere nuisance, and a mandatory injunction was granted.

Bernstein v. Skyviews [7]

When Bernstein sued the defendants in trespass for taking aerial photographs from hundreds of meters above the ground of his house, the issue of trespass into the airspace above the ground was in question.  

The Court held that at that height Bernstein had no reasonable use of airspace and the defendant was not liable for trespass on that ground.

Indian Law of Aerial Trespass

Section 17 provides that no suit shall be brought in respect of trespass or nuisance, solely because of the aircraft’s flight over any property at a height above ground that is reasonable in view of wind, weather and all the circumstances of the case, or solely because of the ordinary incidents of such flight.

The law provides that anyone who flies to cause damage to a person or property may be punished with six months’ of imprisonment or a fine of Rs 1,000 or both.

Continuing Trespass

Every Continuance of Trespass is a fresh infringement and an action can be brought against it.  The continuation of day-to-day trespass is considered a separate trespass on each day in law. Illustration: An action can be taken for the original trespass of placing some material on someone else’s land and another action to continue the deposited things.

Note: A recovery of damages in the first action, by way of satisfaction, does not operate as a purchase of the right to continue the injury.

Trespass by Animals

Cattle trespass was ancient common law torture whereby the animal keeper was strictly liable for any damage caused by the straying animal. Livestock keepers are responsible as if they have committed the trespass on their own. Cattle trespass liability is strict which means independent of negligence. In India, there is the Cattle Trespass Act of 1871.

Criminal Trespass

Entry into or into another’s property in criminal law is not an offense per se. Either with the intention of committing an offense or intimidating, insulting or annoying the person in possession of the property in order to commit a criminal offense.

Illustration: A has an orchard; B enters the orchard for a pleasure trip without harm; he may be held liable for civil infringement. But if B goes into stealing fruits, he will be guilty of a criminal offense.

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. Note: actions include, as the case may be, claims for damages or injunctions.

Damages

A claim for damages in order to recover any financial loss suffered as a result of an infringement may be made or, alternatively, 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 own disposal or the right to use it exclusively. It is protected in its own right. According to Salmond-  “the possession of a material object is the continuing exercise of a claim to the exclusive use of it.” It has two elements that are mental and physical. The mental element is called as ‘animus’ and the physical element is known as ‘corpus’.

Animus denotes the possessor’s intention regarding things and corpus consists of the external facts in which this intention realized, embodied or fulfilled itself. A thing’s physical possession does not give possession right who holds it.  

Example: A has gone to a car showroom and is examining the vehicle’s different features and taking the test drive. The car is in his custody while driving the car, but not in his possession. But he’s in full possession of it if he runs away with the car. Here, he has both the animus and possession necessary, and he can exclude others except the car shop owner. The wrongful possession is therefore protected by law against all but the wrongful possession.

Possession

(i)- Possession in fact (de facto possession) like servant’s possession. 

(ii) Possession in law (de jure possession) like master’s possession.  

The servant’s intention here is to exclude others on behalf of his master and he can maintain a trespass action against those who interfere with property or article possession. While the intention of a master is to exclude others from interfering with the thing and he is doing so on his own behalf.

There is a difference between ‘possession right’ and ‘possession right.’  If X is a landlord who subordinates his premises to Y for 11 months, it means X is entitled to possession after 11 months ‘ expiry and the tenant is entitled to possession during this period. A person who has the right of possession has the right to sue for infringement and not the right of possession.

Defenses

The following defenses are available as a defense 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  

Dispossession

Dispossession is wrongfully taking possession of land from its rightful owner. Thus, the landowner was completely deprived of his dominion by the person’s act.

Prerequisite:

• The plaintiff/owner must have possession.  
• The plaintiff should have a better title as compared to the defendant.  

Remedy:  

The party dispossessed can bring an action to recover possession of the land.

Defenses:

Defenses against suits pursuant to Section 5 of the Specific Relief Act, 1963 are mainly two-fold-

1- That the defendant has a better title than the plaintiff;

2- Prescription.

Note–

• The landlord does not need to prove his title, but just end the tenancy.
• The licensee can not dispute the title of the persons who licensed them.
• There is a conflict of opinion between high Courts whether the complainant in the suit for possession of the immovable property is entitled to succeed merely by proving that they had previous possession or whether he is bound to prove title.

References

1. (1681) 3 Lev 37
2. [1647] Style 65
3. (1991) 2 SCC 141
4. (1944) KB 298
5. (1978) ILR 28 Raj 42
6. (1957) 2 QB 334
7. [1978] QB 479