This Article is written by Praneeth T (2nd-year law student pursuing BALLB from Padala Rama Reddi Law College, Ameerpet – Affiliated to Osmania University.)
Table of Contents
Trespass to land is a tort, and even trespass in the airspace above the land is also considered to be a tort. Law says “Cuius est solum, eius est usque ad coelum et ad inferos” is a principle of property law, it is stating that property holders have the rights not only to the plot of land itself, but also the air above and the ground below (whoever’s in the soil, it is there all the way to Heaven and all the way to Hell). The wrong committed by the trespasser is considered to be ‘actionable per se’, you do not have to prove that you suffered loss or damage in order to take the case to court.
Under English common law, trespass was of 3 kinds.
- Trespass quare clausum freight or trespass to land.
- Trespass viet armis or trespass to person.
- Trespass de bonis asportatis or trespass on goods.
- Trespass on land is unjustifiable interference with possession of land.
- Where there is justification to enter the premises of another it is no trespass.
If 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, then 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 a wrongful purpose in mind. The plaintiff can claim damages, not only for the wrongful act which is subsequently done by the defendant but even the original entry which is now considered to be a trespass.
What is Trespass –
Trespass to land means interference with the possession of land without a lawful justification. In trespass, the interference with the possession is direct and through some tangible objects. If the interference is not direct but consequential, the wrong may be a nuisance. Throwing stones upon one’s neighbour’s premises is considered to be wrong of trespass. To allow stones from a ruinous chimney to fall upon neighbours’ premises is considered a nuisance. Trespass could be committed either by a person himself entering into the land of another person or doing the same through some material objects, for instance, throwing stones on another person’s land, placing a ladder against the wall, driving nails into the wall. Allowing cattle to stray on another person’s land is also trespass. If there is interference with the possession of others it amounts to trespass. Going beyond the purpose for which a person has to enter or cross the boundary where he has the authority to go, amounts to trespass. If a person, is allowed to sit in a drawing-room but enters the bedroom without any justification, the entry into the bedroom becomes a trespass. Where there is a justification to enter the premises of another person, it is not a trespass.
Trespass is wrong against possession rather than ownership. If a person in actual possession can bring an action even though, against the true owner, if his possession was wrongful. Then the trespasser is not allowed to take the defence of “jus terti”. In, Graham vs. Peat the plaintiff was holding the land under a lease which was void but he was nevertheless entitled to bring an action for trespass against the defendant who had entered that without lawful justification, because, any possession is a legal possession against the wrongdoer. Trespass is said to be actionable per se and the plaintiff need not to prove any damage for an action of trespass. Neither use of force nor showing any unlawful intention on the part of the defendant is required.
Remedies available for Plaintiff against the Trespasser –
Law gives us 4 remedies i) Re-entry ii) Action for Ejectment iii) Action for Mesne Profits iv) Distress Damage Feasant.
If a person’s possession had been disturbed or wrongly dispossessed by a trespasser, he has a right to use reasonable force to get a trespasser out of his possession. In, Hemmings vs.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 because their action had only amounted to an ejectment of a trespasser.
Action for Ejectment –
This is a speedy remedy where the person, who had been dispossessed of certain immovable property, without a due course of law, can recover back the property by suing a person, Section 6, Specific Relief Act, 1963 gives a speedy remedy to a person who has been dispossessed of immovable property. No suit under this section shall be brought after the expiry of ‘six months from the date of dispossession. This section gives relief only to a person in lawful possession. A mere trespasser cannot have recourse to this provision.
Action for Mesne Profits –
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.
Distress Damage Feasant –
This right authorizes a person in possession of land to seize the trespassing cattle or other chattels, he can detain them until compensation has been paid to him for the damage done. The main idea is to force the owner of the chattels to pay compensation and after the compensation has been paid, that chattel is to be returned, moreover, it is the same with the seized things also after receiving the damaged things or the objects should be returned, (things like a cricket ball, football etc., and the will be no right to follow the things after it has gone out of those premises. For claiming the right it must be seized the very thing which had trespassed and caused the damage, suppose if the damage has been done by one animal, no other animal, even from the same herd, can be seized.
Trespass is considered to be a Tort, the trespasser will be liable for the tort which he is committed. Trespass to land is considered to be actionable per se the plaintiff need not prove any damage suffered by an action of trespass. Entry with a license is not considered to be a trespass, permitting a person to cut a tree on one’s land or permitting a person by the cinema management to see a film are examples of license. After the license is revoked, the licensee becomes a trespasser on land and must quit that place within a reasonable time. If a person entering into certain premises with the authority of the person in possession amounts to a license and the defendant cannot be made liable for trespass.
 Graham v. Peat(1801) 1 East 244
 Hemmings v. Stoke Poges Golf Club, (1920) 1 K.B. 720