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Trespass to Land

A trespass to land is any interference with a person's rights in his land without lawful
justification. An unlawful entry into some others property is trespass, even if no harm is
done to the property.
The act of the trespasser may include the entering of the property without authorisation,
occupying other persons land, or placing objects and obstructions on the land. An act of
trespass must be direct and intentional and without consent for an action to succeed.
Trespass is actionable per se and hence no damage needs to be proven. English jurists have
described trespass as, every invasion of private property, be it ever so minute. !t can thus be
deduced that in order to constitute a tort of trespass, the use of force, unlawful intention or
proof of actual damage is not necessary. Trespass is possible not only on the surface of the
land but on underground or subsoil even.
Trespass to land is an intentional tort. "owever, intention for the act is re#uired, not an
intention to trespass. $onse#uently, deliberate entry is re#uired and lac% of %nowledge as to
trespass will not be a defence.
Involuntary entry (Smith v Stone (!"#$ Sty !%$
An involuntary trespass is not actionable& 'mith v 'tone ()*+,- 'ty *., where / was carried
onto the land of 0 by force and violence of others1 there was trespass by the people who
carried / onto the land, and not by /.
Ne&li&ent entry (Lea&ue a&ainst 'ruel Sports v S(ott$
A negligent entry is possible and was considered in 2eague against $ruel 'ports v 'cott. The
0s owned 34 unfenced areas of land. 'taghounds used to enter the land in pursuit of deer. The
0s sued the joint 5asters of the "ounds for damages and sought an injunction against further
trespasses. 0ar% 6 issued an injunction in respect of one area restraining the defendants
themselves, their servants or agents, or mounted followers, from causing or permitting
hounds to enter or cross the property. /amages for si7 trespasses were awarded. The judge
89here a master of staghounds ta%es out a pac% of hounds and deliberately sets them in
pursuit of a stag or hind %nowing that there is a real ris% that in the pursuit hounds may enter
or cross prohibited land, the master will be liable for trespass if he intended to cause the
hounds to enter such land or if by his failure to e7ercise proper control over them he causes
them to enter such land.8
Remedies )or Trespass
The aggrieved person has a right to use force to vacate the trespasser, provided such
force is reasonable.
!f any person is dispossessed of his property, without his consent, he may recover
such possession by filing a suit for ejectment.
The aggrieved person may also claim damages for the loss, which he has suffered
during the period of dispossession. 'uch claim for compensation is %nown as an
action for mesne profits. The principle relief in such suits should include both prayer
for ejectment and mesne profits or damages since these claims arise out of the same
cause of action of dispossession
"owever, if the trespasser becomes a settled possessor, even the actual owner cannot evict
him by the use of force. The 'upreme $ourt in :ama ;owda v. 5. <ardappa, (3==+- ) '$$
,*>, page ,,* has set out the conditions for determining a settled possessor, which can be
enumerated as follows& ?
The trespasser must be in actual possession of the property over a sufficiently long
The possession must be to the %nowledge of the owner or without any attempt at
concealment by the trespasser and which contains an element of animus possidendi.
The nature of the possession of the trespasser would, however, be a matter to be
decided on facts and circumstances of each case.
The process of dispossession of the true owner by the trespasser must be complete and
final and must be ac#uiesced by the owner sleeping over his rights.
!n cases of cultural lands if any crop had been grown by the trespasser then even the
true owner has no right to destroy the crop grown by the trespasser and ta%e forcible
The above principle was also laid down in 0uran 'ingh v. 'tate of 0unjab, ()>,.- +
'$$ .)@, page .3,
A licence is a permission to enter land and may be e7press, implied or contractual. A
dictionary definition is as follows&
8!n land law, a licence is given by A to B when A, the occupier of land, gives B permission to
perform an act which, in other circumstances, would be considered a trespass, e.g., where A
allows B to reside in A's house as a lodger. A bare licence is merely gratuitous permission. A
licence may be coupled with an interest, as where A sells standing timber to B on condition
that B is to sever the timber1 in this case the sale implies the grant of a licence to B to enter
A's land.
!f a licensee e7ceeds their licence, or remains on the land after it has e7pired or been revo%ed,
the licensee becomes a trespasser (,ood v Lead-itter (."%$ / M0, ./.1 "illen v !$!
(Al%ali- 2td C)>4*D A$ *.-. 'uch a person is allowed a reasonable time in which to leave
(:obson v "allett C)>*,D 3 EF >4>1 5inister of "ealth v Fellotti C)>++D GF 3>@-.
There is also the defence of estoppel by ac#uiescence, that is, consent which is e7pressed or
implied from conduct, eg, inactivity or silence (6ones v 'tones C)>>>D ) 92: ),4> H a mere
delay in complaining is not ac#uiescence-.
Ri&hts o) entry
A person may e7ercise a lawful right of entry onto land, for e7ample&
A private right of way granted to the defendant1
A public right of way1
A right given by the common law, such as the right to abate a nuisance1 and
A right of access given by statute, such as Easement Act.
:emedies include&
/amages (which will be nominal if there is only slight harm to land-. The claimant is
entitled to full reparation for his loss incurred. ;enerally depreciation in the selling
value is an ade#uate measure for destruction or damage to the subject matters in
course of the tort of trespass. !f there is an adverse effect onto business due to trespass
the claimant is entitled to recover the profits which were lost. This is called special
An injunction to prevent further acts of trespass (at the discretion of the court-. These
are present for in the case of trespasses to restrain the trespasser. As it was seen in the
case of Ielson <. Iicholson where the 0laintiff had resolved a dispute over the
boundary with the defendant. !n resolving this dispute, it became apparent that the
defendant had planted a tree on the plaintiffs land. The plaintiff filed for a mandatory
injunction against / to get the bush removed.
An action for the recovery of land if a person has been deprived of lawful possession
of the land (formerly %nown as ejectment-.
An action for mesne profits, to recover damages for loss during a period of
:ight of entry, ie the right of resuming possession of land by entering.
!t is unlawful to enforce a right of re?entry, e7cept through court proceedings, while the
occupier is lawfully residing in the premises.