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Lecture 06

Topic: Trespass to Land and Trespass to Goods

Course Name: Law of Tort and Consumer Protection

Course Code: LAN 1204

Course Teacher: Nasrin Akter

Tort signifies conduct which is crooked or twisted. This branch of law has received different
definitions by different writers though the basis of the definition lays emphasis on the same
features which are a) Act or omission in violation of law b) Legal Injury or legal damage and c)
legal remedy by way of unliquidated damages. Tort law does not contain a documented substantive
law but instead is evolved through judicial decisions which are based on English common law
principles of justice equity and good conscience.

Trespass to Land
Trespass means the wrongful disturbance of possession of land or goods of another person. A
person who intentionally and without consent enters another person’s property is a
trespasser. It signifies an infringement or infringement of a right.

Trespass to land occurs when a person intentionally enters someone else’s property without
permission. The only intent required for this claim, is the intent to enter the property. So even if
your neighbors accidently cross from their property into your lot, they can be liable for
trespass. A trespass can also occur if someone causes a physical item, like a golf ball, to enter
your property. Substantial injury is not required.

Camden, LCJ said that “every invasion of private property, be it ever so minute, is a trespass. No
man can set his foot upon my ground without my license, but he is liable to an action, though the
damage be nothing.”
Trespass to land stems from the dictum “cuius est solum, eius est usque, and coelum et ad
infernos”– meaning that anyone who owns the land owns it all the way up to heaven and down
to hell.
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Purpose
To protect the undisturbed use and enjoyment of the land, and punish and deter wilful acts of direct
interference with the possession of land.

Requirements
a. Must be direct (generally immediate) result of the defendant’s action (not direct =not
actionable)
b. Must be intentional in the sense of being a positive voluntary act, meaning the act was
intentional but may not have intended to trespass on the land. It can include negligent acts.
- “Intend” to enter land if consciously intrude, even if honestly, reasonably believe
have lawful right to enter.
c. Actionable without proof of actual damage. Damage is a violation of the right to
undisturbed use and enjoyment of land.

In the case of trespass to land, the unlawful land infringement must be direct, intentional
and actionable in itself. The entry must be intentional in the sense that the trespasser intended to
go onto that particular land. The trespasser’s intention to trespass is not at all necessary.
Illustration: A parachutist’s entry into the land accidentally blown by the wind is unintentional and
there is no liability for trespass.
Trespass to land is "an unjustified direct interference with land in possession of
another” quoted in Chuan Wu v Body Corporate 366611 [2014]
Brown v Dunsmuir [1994] “Trespass to land occurs, inter alia, when a person without justification
causes anything to enter upon land which is in the possession of another. The tort is actionable
without proof of loss”

Definition of Land
Land is far more than merely the physical soil. Land ownership has been granted the rights to all
natural resources on the land. The definition starts with the physical land (which includes the
subsoil below it as well as the airspace directly above. In addition to this are such things as the
buildings and structures erected on the land and any rights associated with the land (for example,
hunting or fishing rights).
• This definition means that any intrusion on someone's land or into subsoil beneath their
land (like tunneling to mine something) can be held as a trespass. Further, erecting a
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permanent structure on your land that overhangs the plaintiff’s land (like signs, cables,
wires, pipes) are usually held as a trespass.
• The traditional view is taken form the latin term "cuius est solum eius est usque ad
coelum et ad inferos". This means that “land” included all airspace from the centre of
the earth to the heavens.

How is Trespass to Land committed?

Trespass to land may be committed in three situations. In each case, the entry must be without
justification. The cases are:
1. Entering the land of the plaintiff:
• In order to constitute a trespass, entry is essential.
• Entry must be without permission.
• The land must be in possession of the plaintiff,
• Entry must be voluntary which means not against a person’s will or
by force.
• Entry must be intentional.
If the defendant consciously enters a land that he believes is his own but that turns out to be the
plaintiff’s land, he is still liable for trespass. It is irrelevant that the defendant made a
reasonable mistake and was not negligent.
Basely v. Clarkson When the defendant mowed his own land, he mistakenly crossed the boundary
and mowed the land of his neighbor, believing it was his own land. The defendant’s plea of mistake
in claiming trespass to land failed because his act of cutting grass was intentional even though he
made a mistake as to where the boundary was. However, if the entry is proven to be involuntary
then it is not a trespass.
Smith v. Stone If someone else throws a person on the land of someone else, i.e. his entry is
unintentional then he will not be liable. There is no act of entry by the defendant in such a
situation. It is a general presumption that a person who owns the surface of land owns all the
underlying strata. Thus at the instance of the owner of the surface, an entry beneath the surface at
whatever depth is an actionable trespass. But in some cases, it is possible that the underlying strata
may be in the possession of a different person.

Illustration: When a person who is not in possession of the surface holds mining rights: if the
surface of the land is in possession of A and the subsoil in possession of B, the surface entry will
be an infringement of A and the subsoil entry will be an infringement of B.

Note- Entering a land prior to the complete transfer of its title to the acquirer shall be considered
a trespass.
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Public streets, including pavements, are primarily dedicated to public use for passage purposes and
may not be used for private residence, private business or as a prayer ground for a particular
community.
2. By staying on land having asked to leave or after any permission has come to an end:
If there remains a person who has legally entered another’s land, he commits trespass after his
right of entry has ceased. His misconduct relates back to making his original entry tortious, and he
is liable for damages, not just for the entry itself, but for all subsequent acts. This is referred to as
trespass ab initio and the abuse will make the original entry illegal.
Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath
Although entry into the property may be legal, therefore, if possession continues even after
permission has been given, it may amount to trespass ab initio. The corresponding concept of
continuity of a civil mistake can be found in the Tort Law. Trespass in torts can be continued one.
Again, if the entry was legal but is subsequently abused and continued after the permission has
been determined, the infringement may be ab initio.
Minister of Health v. Bellotti
A licensee whose license has been terminated or is extinguished by expiry may be sued as a
trespasser if, upon request, he does not vacate and a reasonable time has elapsed.
3. Trespass by interference with the land of another :
Any interference with another’s land is considered to be a constructive1 entry and trespass.
Example- throwing stones or materials over neighboring land, it may also be a gas or invisible
fumes. Driving a nail into a personʼs wall, placing anything against the plaintiffʼs wall, planting
trees in plaintiffs land, or placing any chattel upon the plaintiffs land is trespass by interference on
the land of another person. It was said in Abdul Gani v. Sadu Ram and Others that discharge of
filthy water from a spout in the defendant’s house on the plaintiff’s land is trespass.

Aerial Trespass
The landowner has the right to the airspace above the surface ad infinitum. The ordinary rule is
that whoever has the solum, whoever has the site, is the owner of all up to the sky and down to the
earth’s center. In modern times, the owner has the right to air and space above his land is limited
to the height required for the ordinary use and enjoyment of his land.
Kelsen v. Imperial Tobacco Co. Ltd. An advertising sign erected by the defendants over the
plaintiff’s single storey shop projected into the airspace. The defendant argued that a
superincumbent airspace invasion was not trespass, but a nuisance alone. The projection into the

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if instrument is used for entry or also to aid the entry.
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airspace of the plaintiff was held to be a trespass and not a mere nuisance, and a mandatory
injunction was granted.
Bernstein v. Skyviews When Bernstein sued the defendants in trespass for taking aerial
photographs from hundreds of meters above the ground of his house, the issue of trespass into the
airspace above the ground was in question. The Court held that at that height Bernstein had no
reasonable use of airspace and the defendant was not liable for trespass on that ground.

Continuing Trespass
Every Continuance of Trespass is a fresh infringement and an action can be brought against it. The
continuation of day-to-day trespass is considered a separate trespass on each day in law.

Illustration: An action can be taken for the original trespass of placing some material on
someone else’s land and another action to continue the deposited things.

Trespass by Animals
Cattle trespass was ancient common law torture whereby the animal keeper was strictly liable for
any damage caused by the straying animal. Livestock keepers are responsible as if they have
committed the trespass on their own. Cattle trespass liability is strict which means independent of
negligence. In Bangladesh, there is the Cattle Trespass Act of 18712.

Trespass to land is defined as a person’s unlawful entry onto another’s land. There are five
elements which the plaintiff must show for a valid suit.
1. There was a volitional act made by the defendant.
2. The Defendant acted with the intent of intruding on the plaintiff’s land.
3. There was an actual intrusion on the plaintiff’s land
4. The plaintiff was in possession, or was entitled to immediate possession, of the land when
the intrusion took place.
5. The intrusion was caused by the defendant’s act.

2
http://bdlaws.minlaw.gov.bd/act-details-
22.html?lang=bn#:~:text=I%20OF%201871%20)&text=%E2%99%A3An%20act%20to%20consolidate,relating%20to
%20Trespasses%20by%20Cattle.&text=%5B(2)%20It%20extends%20to%20the%20whole%20of%20Bangladesh.%5
D&text=The%20pounds%20shall%20be%20under,feeding%20and%20watering%20impounded%20cattle.
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General Defenses:
The following defenses are available as a defense for trespass-
1. Exercise of easement3
2. Licence: The defendant must prove they have a licence or permission to enter. The
licence can be from the plaintiff or from another with lawful possession and can be express
or implied.
For example, an implied licence from an occupier to allow members of the public on lawful
business to come through the gate, up the steps, and knock on the door. This does not extend to
entering a house or even a garage uninvited.
3. Acts of Necessity: R v Fraser [2005] Police went to search a property in response to a call,
they found cannabis covered by a dressing-gown. The issue was whether there was
justification for the trespass. Held: The law imputes an authority to enter private property
based on necessity in limited circumstances. The lifting dressing-gown was justified in the
circumstances as lawful and reasonable. The entry onto private property arising from the
emergency call arises from this same concept of necessity.
Public Necessity:
This defense can be used when a person intentionally enters the land of another to protect the
community. There must be an immediate and imperative need to enter the land. This defense will
not be allowed if your actions were determined to be unreasonable under the circumstances.
Private Necessity:
This defense can be used when you enter another person’s land to protect your own interests.
However, it is limited and can only be used if your actions were necessary to protect yourself from
death or serious bodily harm or protect the land from serious destruction or injury.
4. Self-Defense
5. Authority of Law
6. Abating a nuisance

There are many remedies to the tort of trespass

a) Damages – The claimant is entitled to full reparation for his loss incurred. Generally
depreciation in the selling value is an adequate measure for destruction or damage to the subject
matter’s in course of the tort of trespass. If 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 damages.

3
The Easements Act, 1882 ( ACT NO. V OF 1882 ) http://bdlaws.minlaw.gov.bd/act-details-49.html
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b) Injunctions – These are present for in the case of trespasses to restrain the trespasser..

What other Damages Are Available?

A property owner or tenant has a right to compensation for the injury caused by the trespass.
Depending on the nature of the trespass, you may be able to recover for the following damage:
• Loss of market value
• Costs of restoration
• Loss of use of the property
• Physical injury to the person or to the land
• Emotional distress
• Discomfort and annoyance
When permanent injury to real property occurs, the general measure of damages is the loss of fair
market value. In cases of temporary injury, the cost to repair or restore is the common basis for an
award. However, when the cost to repair or restore exceeds the decrease in market value to such a
degree that repairs are no longer economically feasible, then damages are awarded only for the
loss of market value.
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Topic: Trespass to Goods

Trespass to goods refers to the unintentional or intentional interference with the goods which are in the
possession of other, without any lawful justification can be termed as trespass to goods. Unlike trespass to
land trespass to goods are also wrong against the possession of goods. Therefore, if A gives his watch for
repairing to B for 2 days, then he can’t silently take his watch out of B’s possession without his permission.
If in case A takes his watch without permission of B then A could be held liable under the trespass to goods,
even if he is the real owner of the same.
Trespass to goods refers to a physical interference of goods which are in the possession of someone
else, without any lawful justification. Thus, where if I gave my watch to someone for repairing then until
that person has lawful possession of it I can’t take my watch back without lawful justification and if I do so
I will be held liable for trespass to goods.

Kirk vs. Gregory

This is the case of direct interference with a person’s goods. In this case, on the death of A, A’s sister-in-
law removed the jewelry which was kept there where the body of A was kept. With good intention and with
mistaken belief for the safety of jewelry, she moved it and kept it in another room, from where it was stolen.
A’s executer, therefore, bought suit against the sister-in-law. It was held that the sister-in-law was liable for
trespass to jewelry.

Interference to Goods: Can be divided into three separate torts: trespass to goods,
conversion and detinue
1. TRESPASS TO GOODS - Wrongful and direct interference with goods that are in the
possession of another person- Includes using, removing, touching or destroying another’s
goods.- Actonable per se, no need to prove any actual damage.

WHO CAN SUE? – the person who is in actual possession prior to the trespass is the person who
can sue for the trespass to goods.
2. INTERFERENCE - Direct act of defendant and contact with the plaintiff’s good-
Physical interference and voluntarily done by the defendant

3. CONVERSION - An act of denying the plaintiff’s right to immediate possession- Taking

over other’s property and exercising ownership rights over it. They can only claim the
value of the goods and not the good themselves.