Trespass to Land

TRESPASS
It is a tort relating to immovable property. Every
person who possess lawfully any land; has a
right to exclude others from entering over his
land. If a person without permission or
authority enters on his land will be treated as
trespasser.
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 Definition
• Winfield, ‘Trespass to land is the name given to that form of trespass
which is constituted by unjustifiable interference with the possession of
land.’
• Street, ‘ Intentionally or negligently entering or remaining on, or
directly causing contact with land in the possession of another is a
trespass.’
• Trespass is unwarranted entry upon another's land or any direct and
immediate act of interference with the possession of land.
• To constitute trespass, actual force, unlawful detention, actual damage or
breaking of enclosure is not essential.

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Modes of trespass

Trespass to land may be committed by

following ways:
1.Trespass by unlawful entry.
2.Trespass by remaining on land.
3.Trespass by placing things on land.

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 1. Trespass by unlawful entry

• It is the most common mode of trespass.

• For this slightest entry of the defendant is
sufficient.
• Eg: Complete entry, sitting on wall,
inserting hand over another’s property.

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2. Trespass by remaining on land.

• Sometime a person has

permission to enter for certain
time. But if he remains on the land
after his right to entry ceased;
causes trespass.
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3. Trespass by placing things on land.

• It is trespass caused not by actual entry;

but by placing or crossing some physical
things on another’s property.
• Eg. Driving nail into plaintiff’s wall,
throwing stone or rubbish over his
property.

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 Essential elements for trespass

• For an action for trespass “entry” is essential.

• To constitute ‘trespass’ there must be entry by an unauthorized
person.
• A person will not be liable for involuntary entry. But he may be liable for
intentional entry or entry by mistake.
• A person may be liable for aerial or underground trespass.
• If a person enters lawfully, remains there after his right is ceased, liable
for trespass, and his entry is considered as unlawful.
• Every interference with the land of another is considered as
constructive trespass.

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What plaintiff has to prove?
• In an action of trespass, plaintiff must prove
following things.
1. That the plaintiff was in actual possession of the land
at the time of trespass. Where is mere user of the land
is not sufficient. Lawful or unlawful possession is
immaterial.
2. There was direct interference with the possession of his
land. There is no need to show actual loss or damage.

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 Remedies to plaintiff
1. Plaintiff can file suit against defendant for injunction
restraining him from doing and repeating the act of trespass.
2. Plaintiff can file suit against defendant claiming damages.
3. Other remedies like declaration of right, possession,
expulsion may be claimed along with injunction and damages.

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Defences available to defendant

1.Prescription- Defendant may plead that he was

justified by his right by way of prescription.
2.Leave and license – It is also considered as
consent. This defense can be used for those acts
which will be lawful with consent. Where plaintiff
has consented for the entry of defendant; he
cannot complain.
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 Defences available to defendant

3.Authority of law - if the entry of the

defendant is warranted by lawful authority,
he not answerable.
4.Act of necessity – if the act done by the
defendant is under necessity, if may not
be liable.
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 Defences available to defendant

5. Self defense- if defendant does trespass for safety of

himself, property, goods or animals; he may not be liable.
6. Re-entry on land- if defendant has been dispossessd
from his land then if tries for re entry over such land; he is
liable for trespass.
7. Abatement of nuisance- if defendant is doing for
abatement of nuisance; in peaceful manner and without
danger to life and limb; he is not liable for trespass.

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 Trespass ab initio
• Some time a person enters over another’s property with
some authority or consent. Buy later, he does some thing or
abuses or goes beyond such permission to him, he will be
liable for trespass only.
• But if a person enters the land of another under the
authority of some law but then abuses his authority b y
doing some wrongful act , then he will be treated as
trespasser ab initio i.e. he will be treated as trespasser
from the bigining.

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 Six carpenter’s case (Vaux v. Newman)

• In this case six carpenters entered the plaintiff’s inn and

took wine and bread there. They refused to pay for wine
and bread when so asked. Plaintiff sued them for
trespass ab initio. It was held that non payment was
simply an omission to do a certain thing which the
defendants were supposed to do and it amounted to non
feasance. Non feasance does not render a person liable
for trespass ab initio. So the carpenters were not
trespasssers ab initio.

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• In this case, court laid down three points:

1. If a man abuses his authority given to him by law,

he become a trespasser ab initio.
2. In an action of trespass, if the authority be
pleaded then subsequent abuse may be replied.
3. A mere non-feasance does not amount to such
an abuse as renders a trespasser ab initio.

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Limitation to trespass ab initio

1. It is applicable only where the entry is authorized

under any law.
2. It is applicable only in cases of mis feasance and
not for non feasance.
3. It is not applicable where entry can be justified on
other ground.
4. It is less applicable in the present time.

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 ANY
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