Meaning of Trespass

Trespass to land means interference with the possession of land without

lawful justification. In trespass, the interference with the possession is direct
and through some tangible object. Trespass is actionable per se and the
plaintiff need not prove any damage for an action of trespass.

To constitute the wrong of trespass neither force, nor unlawful intention, nor
actual damage is necessary.

Trespass may be committed-

• by entering upon the land of the plaintiff, or

• by remaining there, or
• by doing an act affecting the sole possession of the plaintiff in each
case without any justification.
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 stones on another person’s land. Allowing cattle to stray on another
person’s land is also trespass. It is, however, no trespass when there is no
interference with the possession.

If the interference is not direct but consequential, the wrong may be a

nuisance. Eg.- to throw stones upon one’s neighbour’s premises is wrong of
trespass; to allow stones/smoke from a ruinous chimney to fall upon those
premises is the wrong of a nuisance. 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
escape on the land of the neighbour, that will be a nuisance.

Going beyond the purpose for which a person has entered certain
premises- Perera v. Vandiyar or crossing the boundary where he has the
authority to go amounts to trespass. Thus, if a person, who is allowed to sit
in a drawing-room, enters the bedroom without any justification, the entry
into the bedroom is a trespass. However, if the area to which a person is
lawfully invited and one which is the prohibited area has not been properly
marked, a person does not become a trespasser merely by going beyond the
area of invitation- Pearson v Coleman Brothers.

Where there is a justification to enter the premises of another person, it is no

trespass. In Madhav Vithal Kudwa v. Madhavdas Vallabhdas, 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.
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 vehicles
without causing any inconvenience to anybody and that right can be
exercised without the permission of the landlord.

A man is not liable for trespass committed involuntarily, for example, when
he is thrown upon the land by someone else but he is liable if the entry is
intentional. Even an honest mistake may be no excuse and a person may be
liable for the trespass when he enters upon the land of another person
honestly believing it to be his own.

Trespass is a wrong against possession rather than ownership. Therefore, a

person in actual possession can bring an action even though, against the true
owner, his possession was wrongful. The trespasser is not allowed to take
the defence of “jus tertii.”- title of 3rd person, ie. the trespasser cannot plead
that as between some third party and the person in possession, the title of
the third party is better. In Graham v. Peat, the plaintiff was holding the
land under a lease which was void but he was entitled to bring an action for
trespass against the defendant who had entered that land without lawful
justification, because, “any possession is a legal possession against the
wrongdoer.”

A person in possession, even if he himself is not the owner, can bring an

action. An owner of the land, who neither has possession nor any immediate
right to possess it, cannot bring an action for trespass- Baxter v. Taylor. A
reversioner (a person who gets an estate back in reversion- an interest that
reverts back to the grantor after a certain period) may, however, sue if by
the trespass, injury of some permanent nature, which’ will affect his
reversionary interest, is likely to result.

Trespass is possible not only on the surface of the land but it is also equally
possible by an intrusion on the subsoil. Eg- Taking minerals from out of the
subsoil. It is possible that the surface may be in possession of one person
and the subsoil of another. In such a case, if the trespass is on the surface,
the person in possession of the surface alone, and not the possessor of
subsoil, can sue for that. Similarly, for trespass on the subsoil, the possessor
of the subsoil alone can sue. However, digging a hole vertically in the land
may amount to a trespass wherein the action can be brought by each one of
them.

Probably, an inevitable accident will be a good defence as it is there in case

of trespass to persons in chattels- domestic animals, cars, furniture- Holmes
v. Mather.

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. The plaintiff can, therefore, claim
damages, not only for the wrongful act 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, it is necessary that the defendant must have been guilty of a
positive wrongful act (misfeasance) rather than a mere omission to do his
duty (non-feasance). In Six Carpenters’ case, six carpenters entered an
inn and ordered some wine and bread. After having taken the same, they
refused to pay for that. They had done no act of misfeasance and mere non-
payment being only nonfeasance, there was held to be no trespass ab initio.

Misfeasance must be such that will render the presence of the defendant on
the premises as wholly unjustified. The case of Elias v. Pasmore illustrates
the point. In that case, the defendants, certain police officers, entered the
plaintiff’s premises to make a lawful arrest. There they removed certain
documents without having any lawful authority for that, which was,
therefore, an act of misfeasance. By their act of misfeasance, their presence
there had not become wholly unjustified because the arrest, i.e., the lawful
purpose, had yet to be accomplished. They were held trespassers only with
regard to the documents which they had seized and not trespassers ab initio
to those premises.

Entry with a licence

Entering certain premises with the authority of the person in possession
amounts to a licence and the defendant cannot be made liable for trespass.
Eg- Permitting a person to cut a tree on one’s land.

Section 52, Indian Easements Act, 1882 defines ‘Licence’ 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
the property, the right is called a licence.”

After the licence 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 licence, the licences are considered to be of two
kinds:

(i) a bare licence, and

(ii) a licence coupled with a grant.

A bare licence can be revoked, whereas a licence which is coupled with the
grant cannot be revoked. Eg.- A licence to see a picture is a licence coupled
with the grant and the cinemas authorities cannot revoke such a license.
Similarly a licence to cut down a tree and carry it away is an example of
licence coupled with a grant. In certain cases, the licensor, by the terms of
the contract, express or implied, may agree that even a bare licence will also
not be revoked.

In Wood v. Leadbitter, 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 mat, he was forcibly ejected by
the defendant’s servants. The plaintiff brought an action for assault. It was
held that the revocation of the licence was effectual and after the revocation
of the licence, the plaintiff had become a trespasser and ejection of the
trespasser out of the premises was not an actionable wrong- Obsolete now.

The decision in Hurst v. Picture Theatres Ltd. is just to the opposite

effect. 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 licence
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. In this case, Buckley, L.J. was of the opinion that the decision in
Wood v. Leadbitter was also an authority for the rule that a licence coupled
with a grant was not revocable. There was considered to be no grant in
Wood’s case for some other reason. The decision in Hurst’s case has been
formally approved by the House of Lords in Winter Garden Theatre Ltd, v.
Millennium Productions Ltd.

The Hurst’s case has been criticized on the ground that the damages would
have been an adequate remedy and no order for specific performance would
have been issued.

Trespass by Relations
One who has the right to possess is by legal fiction deemed when he entered
to have been in position from the moment when his right of entry accrued.
Thus, if an owner of property wrongfully ousted of possession manages to
enter his premises, he will be deemed to have been in any position even
during the period that is actually out of the possession and he can bring
actions for trespass for wrong to the property during that period.

Actual physical contact is not necessary to constitutes de facto possession

that is possession, in fact, eg books and clothes at home and not sea in a rly
train.

Trespass over Airspace

A person has an ownership of not only the earth’s surface but also of
anything below-subsoil or above-airspace, that surface which is capable of
being reduced into private ownership.

In India, the Aircraft Act of 1934 makes it a punishable offence for any
person wilfully to fly an aircraft to cause danger to any person or property in
land or water or in the air but it contains no provision of absolute liability as
in the English Acts.

Continuing Trespass
Every continuance of trespass is a fresh trespass, in respect of which a new
cause of action arises from day to day as long as the trespass continues.

Defences to Trespass
Any justifiable entry or interference will negative liability for trespass.
Justification by law, private defence, inevitable accident, license, necessity,
parental authority, etc are well recognised lawful defences for trespass. For
eg, Policeman can enter a private house through an open door late at night if
he had reasonable grounds to believe that there is some disturbance there
which requires immediate investigation.

Remedies
1. Re-entry
If a person’s possession had been disturbed by a trespasser, he has a right
to use reasonable force to get a trespass vacated. A person, who is thus
entitled to the immediate possession, uses reasonable force and regains the
possession himself, cannot be sued for trespass. Ousting a trespass by a
person having a lawful right to do so is no wrong. Thus, in Hemmings v.
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.

2. Action for Ejectment

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.

“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…”

This is a speedy remedy where the person, who had been dispossessed of
certain immovable property, without due course of law, can recover back the
property without establishing any title.

Even-a person claiming a superior title has no right to evict any other person
without due process of law and if he dispossesses another by taking the law
into his own hands, the persons dispossessed will be restored back the
possession under the above-stated provision.

This section gives relief only to a person in lawful possession. A mere

trespasser cannot have recourse to this provision.

3. Action for Mesne Profits- S.2(12) CPC

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. Mesne profits refer to the profitts taken by the defendant
during the period of his occupancy.

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

profits. If the plaintiff likes, he may sue in ejectment and mesne profits in
the same action. His claim is not limited to the benefit received by the
defendant from that land during that period.

4. Distress Damage Feasant/Seizure/Detention

The right of distress damage feasant authorizes a person in possession of
land to seize the trespassing cattle or other chattels and he can detain them
until compensation has been paid to him for the damage done. The idea is to
force the owner of the chattel to pay compensation and after the
compensation has been paid, that chattel is to be returned.
Any chattel, animate or inanimate, can be detained. The thing seized,
therefore, may be a cricket ball, a football, a cow, a horse or even a railway
engine.

In Boden v. Roscoe, the occupier of land was held entitled to detain a pony,
which after trespassing had kicked his filly until compensation for the
damage done was paid.

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.

There is no right to follow the things after it has gone out of those premises
or to recover them after the owner has taken them away. It is also necessary
that the thing seized must be the very thing which had trespassed and
caused the damage. Thus, if the damage has been done by one animal, no
other animal, even from the same herd, can be seized for the exercise of the
right.