Trespass to land – essentials, remedies, defences – law of torts
Introduction to Trespass
Trespass, in its widest sense signifies any transgression or offence against the law of nature of society, or of the country, whether relating to a person or to his property. But the most obvious acts of trespass are :
- Trespass vet armis or Trespass to person
- Trespass quare clausum fergit or trespass to land
- Trespass de bonus asportatis or trespass to goods or chattels
Trespass to land :
Trespass to land means interference with the possession of land without justification. Trespass is actionable per se and the plaintiff need not prove any damage for an action to trespass. To constitute the wrong of trespass neither force nor unlawful intention, nor actual damage is necessary. Every invasion of a private property, be it even so minute, is a trespass.
Trespass may be committed
- By entering upon the land of the plaintiff
- By remaining there
- Or by doing an act
- Acting the sole possession of the plaintiff, in each case without justification.
Trespass ab initio :
When a person enters certain premises under the authority of some law and after having entered there abuses that authority by commuting some wrongful act there, there he will be considered to be a trespasser.
In Ellias vs pasmore : two police constables lawfully entered premises to arrest one of the plaintiff and whilst on the premises took possession of a laerge number of documents, some rightfully and some wrongfully.it was held that they were trepassers only as to the documents which were wrongfully taken and that they were not liable as trespassers ab initio for the damages to the premises which they had lawfully entered for the purpose of arrest .
Entry with a license :
entering certain premises with the authority of the person in possession accounts to license and the defendant cannot be made liable to trespass.
Trespass by relation:
one who has right to possess is by a legal fiction deemed when he enters to have been in possession from the moment when his right of entry accured .thus when an owner of the property wrongfully ousted of possession manages to enter his premises, he will be treated to have been in possession even during that he was actually out of possession and he can bring action in trespass for wrongs to property during the period.
Trespass over Airspace :
trespass over Airspace may take place through aircraft, polluting gas at , in Gifford vs Dept : the tenant of the upper floor of a building affixed an ornamental sign to his premises so that it projected over a forecourt occupied by another tenant.it was held that a trespass was committed as the injury caused was direct and immediate.
Defences to trespass:
Any justifiable entry or interference will be negative liability for trespass. Justification by law, private defence, necessity and parental authority are the lawful defences for trespass..
Remedies :
- Re entry -The person entitled to possession can re enter the premises in a peaceful manner.
- Action for ejectment : a person in lawful possession when dispossessed of certain immovable property without due course of law , can recover back the property by filling a suit within 6 months of his dispossession.
- Action for mense profit :apart from the right of recovery of land by getting the trespaaser who was wrongfully disposed of his land may also claim compensation for the loss which he had suffered during the period of dispossession
- Distress damage feasent : this right authorises a person in possession of land to seize the trespassing cattle or the other chattels. He can detain them until the compensation has been paid to him for the damage done.
Author: Harshita Swami,
Guwahati University