TRESPAS TO LAND

The conventional wisdom has it that a property owner

assumes virtually no responsibility for guiding others in
fulfilling their duties not to trespass on the formers property.
In other words the entire risk of making an unauthorised use
of the property in question rest upon the duty holders .

But a more precise account of trespass to land will reveal that

the tort give rise to a hybrid regime of tort liability ,one which
combines considerations of fault along with those of strict
liability on the proposed account .therefore an owner does
assume some responsibility for guiding others in fulfilling the
duty they owe the former .

The tort of trespass to land has for centuries occupied a

highly strategic place in the legal landscape, lying at the
respective cores of common law torts and property. From a
torts perspective, the development of this body of law as a
whole can, to an important extent, be reduced to the
past dialectic of trespass and trespass on the case and the
present dialectic of trespass and negligence.1 In property, the
tort of trespass to land has shaped the discussions
concerning core property concepts. It needs
no proof to demonstrate that economic and social change are
the controlling factors in the evolution of trespass, and not
judicial or philosophical fiat.
Direct interference with possession (not ownership) by
himself – through tangible/material object : TRESPASS
Indirect interference – consequential : NUISANCE
Defences allowed
:
i. lawful justification
ii. has lawful right to do so (can be exercised without
permission of the owner) : MADHAV VITHAL KUDWA V.
MADHAVDAS VALLABHDAS (has right to park in compound)
iii. when owner ACQUIESCES in frequent act of trespass
LOWREY V. WALKER : The court held that whilst the plaintiff did not have express
permission to use or cross the defendant’s land, a licence to be on the land could be implied
from the repeated trespass which had occurred and the acquiescence of the defendant to
this.

iv. inevitable accident :

Defences not allowed

i. Jus tertii : among possessor and third party , cannot

plead that title of third party better GRAHAM V. PEAT
(lease void but can bring action)
Any possession is legal possession against the
wrongdoer
ii. An owner of land who neither has possession nor an
immediate right to possess it cannot bring an action
 for trespass( but a revisioner can, if his revisionary
rights are affected) BAXTER V. TAYLOR
iii. honest mistake

The way in which tress may occur

1. Entering upon land

Walking onto land without permission, or refusing to leave when

permission has been withdrawn, or throwing objects onto land are
all example of trespass to land.

2. Trespass to the airspace

Trespass to airspace above the land can be committed. E.g D

committed trespass by allowing an advertising board to project
eight inches into P’s property at ground level and another above
ground level.

Note- that s76(1) of the Civil Aviation Act 1982 provides that no
action shall lie in nuisance or trespass by reason only of the flight
of an aircraft over any property at a height above the ground
which is reasonable. However, s76(2) confers a statutory right of
action in respect of physical damage caused by aircraft, actionable
without proof of negligence.

iv. 3. Trespass to the ground beneath the surface/intrusion on

the subsoil- e.g. the Ds mined from their land through to the P’s
land. This was held to be a trespass to the subsoil.

TRESPASS AB INITIO

 Enters the premises with lawful authority

 Non -feasance not enough, positive act of misfeasance

  The misfeasance must render the presence of the defendant on the
premises as wholly unjustified for ab initio ELIAS V. PASMORE (lawful
arrest-documents) – not ab initio

 SIX CARPENTERS CASE : not held to be trespass ab initio

DIFFERENCE BETWEEN TRESPASS IN TORT AND TRESPASS IN

CRIMINAL LAW
In civil law, Every invasion of property be, it ever so minute ,is
a trespass .
neither use of force nor showing any unlawful intention on
the part of the defendant are required
But according to section 441 IPC the offense of criminal
trespass consists in entering or remaining on the land on any
other persons property with an intent to commit an offence
or intimidate, insult or annoy any person in possession of
such property

Who can sue for trespass?

Possessor or person having any immediate right to possess or
a reversioner where his reversionary interests are affected
Remedies
1. Re-entry – reasonable force to get trespass vacated
2. Action for ejectment -special relief act 1963-by suit
recover possession- till six months of dispossession this
right is valid- must have lawful possession
3. Action for mesne profits – recovery of land +
compensation – not limited to benefit by defendant but
to loss suffered by plaintiff during that period
4. Distress damage feasant – seize cattle / chattels- detain
till compensation paid – BODEN V. ROSCOE (pony) –
cannot follow animal after gone or owner taken – seize
same animal causing trespass