Trespass to Land

Trespass refers to direct interference with possession or enjoyment of land of another without lawful justification through some tangible object. If the interference is not direct, but consequential or indirect, the wrong may be nuisance.

For instance, 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 escapes on the land of the neighbour, that will be a nuisance.

Land includes soil, any fixtures permanently attached to the land (houses, walls, poles, etc.), the airspace above the land, and the ground below up to a reasonable height and depth. 

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 of stones on another person’s land, placing ladder against the wall etc.

Going beyond the purpose for which a person has entered certain premises or crossing the boundary where he has the authority to go, amounts to trespass. Thus, if a person is allowed to sit in a drawing-room, enters the bedroom without any justification, the entry into bedroom is a trespass. Where there is justification to enter the premises of another person, it is no trespass.

Trespass is a wrong against possession rather than ownership. Thus, the person in actual possession can sue even if they are not the owner. Trespasser is not allowed to take the defence of “jus terti”. In other words, the trespasser cannot plead that as between some third party and the person in possession, the title of the third party is better. A person can succeed on the strength of his own title rather than on the weakness of the title of the other party.

Relevant Case Law:

Here is a relevant case law with respect to the statement, “Where there is justification to enter the premises of another person, it is no trespass.”:

1. Madhav Vithal Kudwa v. Madhavdas Vallabhdas (1979) – In this case, 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 to restrain the defendant from parking his vehicles there.

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 vehicle without causing any inconvenience to anybody, as in the present case, and that right can be exercised without the permission of the landlord.

Essentials

Essentials of Trespass to Land are as follows:

1. Unauthorised Entry - Includes unauthorized entry of material objects.

Relevant Case Law:

1. Gregory v. Piper (1829) – In this case, Gregory (G) owned a pub with a stable-yard accessible through Old King’s Yard, which Piper (P) disputed. P instructed his labourer to place rubbish near G’s stable-yard to obstruct access. Despite instructions to avoid touching G’s wall, the rubbish encroached on G’s property. G sued P for trespass.

The Court held in Gregory v Piper that P was liable for trespass, emphasising that a master is responsible for acts done by a servant in the course of executing the master’s orders. The trespass was deemed a foreseeable and probable result of P’s instructions, establishing the principle of vicarious liability and highlighting the employer’s responsibility for the natural consequences of directed actions.

2. Possession by Plaintiff - Land must be in actual/constructive possession of the plaintiff.

Relevant Case Law:

1. Bernstein v. Skyviews (1978)- In this case, Skyviews and General Ltd (S) took an aerial photograph a number of houses, including Coppings Farm, Bernstein’s (B) country home. S then purported to sell the photograph to B. B claimed damages for trespass onto his airspace and, or alternatively, invasion of privacy for entering the air space above his property and taking the photograph without his consent.

The issue in question was whether a person has the right to privacy in airspace.

It was held that there was no trespass. An owner of land has rights in the air space above his land only to such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. B had no right to privacy in airspace and accordingly there had been no infringement of B’s rights in the airspace above his property.

3. Voluntary and Intentional Entry - Trespass is an intentional tort requiring deliberate entry, not necessarily an intention to trespass.

Relevant Case Law:

1. Smith v. Stone (1647) – In this case, Smith (S) brought an action of trespass against Stone (D) after D was carried onto S’s land by force, and violence of others, and was not there voluntarily. D was carried onto the land of P by force and violence of others; there was trespass by the people who carried D onto the land, and not by D.

D 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

It was held that an involuntary trespass is not actionable. Only the trespass of the party which D onto the land was actionable. The court compared the present circumstance to a hypothetical situation involving a person driving cattle onto someone else’s land:

“as he that drives my cattel into another man’s land is the trespassor against him, and not I who am owner of the cattell.”

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. Even though he had originally lawfully entered there, the law considers him to be a trespasser from the very beginning and presumes that he had gone there with that wrongful purpose in mind. The plaintiff can, therefore, claim damages, not only for the wrongful act which is 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, non-feasance (i.e., omission to do something) is not enough, it is necessary that the defendant must have been guilty of positive act of misfeasance (i.e., doing of a wrongful act). 

Relevant Case Laws:

Here are some relevant case laws with respect to trespass ab initio:

1. The Six Carpenters’ Case (1610) - This is the foundational case that established the principle of trespass ab initio. In this case, six carpenters lawfully entered a pub and bought food and drink. When they refused to pay for a second round of wine, the court ruled they were not trespassers ab initio because the refusal was a nonfeasance (a failure to act), not a positive wrongful act (misfeasance).

The court distinguished between the initial lawful entry and the subsequent wrongful act, and set the precedent that only a misfeasance can trigger the doctrine.

1. McGuire v. United States (1927) – In this case, revenue agents with a search warrant lawfully entered McGuire's property to search for illegal liquor. While on the premises, they destroyed all the seized liquor without a court order, except for a small amount they kept as evidence. The court held that by destroying the liquor, the officers committed a wrongful act beyond the scope of their authority and became trespassers ab initio.

Entry with a License

Entering certain premises with the authority of the person in possession amount to a license and the defendant cannot be made liable for trespass.

Section 52, Indian Easements Act, 1882 defines ‘License’ 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 property, the right is called a license.

For example, permitting a person to cut a tree on one’s land. 

After the license 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 license, the licenses are considered to be of two kinds:

1. A bare license, and
2. A license coupled with a grant.

A bae license can be revoked, whereas a license which is coupled with a grant cannot be revoked.

For instance, a license to cut down a tree in a man’s grounds, and to carry it away the next day to his own use, is a license as to the act of cutting down the tree, but as to carry away the tree cut down, it is a grant.

Carrying away a tree cut down being a grant, such license is irrevocable.

Relevant Case Laws:

Here are some relevant case laws with respect to Entry with a License:

1. Wood v. Leadbitter (1845) – In this case, 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 that, he was forcibly ejected by the defendant’s servants. The plaintiff brought an action for assault.

It was held that the revocation of the license was effectual and after the revocation of the license, the plaintiff had become a trespasser and ejection of the trespasser out of the premises was not an actionable wrong.

1. Hurst v. Picture Theatres Ltd. (1915) – In this case, 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 license 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.

Since this decision, the rule in Wood v. Leadbitter is considered to be obsolete.

The decision in Hurst’s case has been formally approved by the House of Lords in Winter Garden Theatre Ltd. v. Millenium Productions Ltd. (1948).

Remedies

Remedies for Trespass include:

1. Re-entry - The person entitled to possession can use reasonable force to remove a trespasser.

1. Hemmings v. Stoke Poges Golf Club (1920) – In this case, the plaintiff had been in the employment of the defendants. On the termination of the service, the plaintiff was given a 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 because their action had only amounted to ejectment of a trespasser.

2. Action for Ejectment - Recover property within six months of dispossession.

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. The relevant provision is as follows:

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…

3. Action for Mesne Profits - Claim compensation for loss during the period of dispossession.

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. An action to recover such compensation is known as an action for mesne profits.

His claim is not limited to the benefit received by the defendant from that land during that period.

4. Distress Damage Feasant - Seize trespassing animals/chattel until compensation is paid.

The idea is to force the owner of the chattel to pay compensation and after the compensation has been paid, the chattel is to be returned. Any chattel, living or non-living, can be detained. The thing seized, therefore, may be a cricket ball, a football, a cow, a horse or even a railway engine.

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.

Defences

Defences for trespass include:

1. License - Permission from the possessor to be on the land; revocation leads to trespass ab initio.
2. Jus Turtii - Proving possession by a third party.
3. Necessity: Committing trespass due to an urgent need.

Relevant Case Law:

Here is a relevant case law with respect to the third defence mentioned above, i.e., necessity:

1. Esso Petroleum Co. v. Southport Corporation (1956) - In this case an oil tanker belonging to the defendant bound from Liverpool to Preston developed a steering fault when approaching a tide water in rough weather because of the bad weather and the danger of turning round, the master decides to continue into the channel. However, the vessel took a heavy shear to starboard and ran aground on a coastal wall. In order to save the vessel crew from danger, the master discharged 400 tonnes of oil to lighten the vessel, and polluted the Southport coastline. Southport Corporation claimed damages on the ground that the deposit of oil on their property constituted a nuisance, or was a trespass, and also negligence (Chao, 1996).

The initial judgment by Mr Justice Devlin favoured the defendants, dismissing the claims of nuisance and trespass and attributing the incident to a defect in the ship's steering gear, which caused the vessel to lose control. The Southport Corporation appealed this decision to the Court of Appeal. The majority of the appellate court, led by Lord Justice Singleton, overturned the lower court's decision, holding Esso Petroleum Company liable for the discharge of oil. The court emphasized the duty of ship-owners to maintain their vessels and prevent environmental harm, establishing that failure to do so constitutes negligence resulting in public nuisance.