LAW OF TORTS

MODULE 7
TRESPASS

MR. ARINDAM NERAL

ASSISTANT PROFESSOR OF LAW
 TRESPASS
• Tort of trespass is one of the oldest torts in English law.

• Trespass is the direct interference with another person or his property, which infringes
the person’s right to enjoyment of his land, possession of his goods or freedom of
movement or by putting him in fear of bodily injuries.

• Trespass is accountable per se. This means that the claimant only needs to show that
the trespass occurred, although it is not necessary to show that the defendant caused
any damage or injury.

• In modern law the trespass takes three forms: trespass to person, to land and to goods.
All three torts have the same characteristics, they must be committed intentionally,
cause direct and immediate harm and are actionable per se, i.e. without proof of
damages.
 TRESPASS TO PERSON

Trespass to person refers to the case where there is the wrongful apprehension of a
body or person. That is, there is a wrongful apprehension of one’s body or person
causing harm or injury done with malafide intention.

There are three types of trespass to person:

1. ASSAULT
2. BATTERY
3. FALSE IMPRISONMENT
 ASSAULT

• Assault refers to causing illegal apprehension of fear in the mind of other person
causing him to suffer injury can be termed an assault.

• It is an unlawful attempt to do a bodily hurt to another coupled with the present ability
and intention to do the act.

• Assault is putting a person in fear of an immediate battery.

• For proving assault there is no need for having suffered any physical harm.

• Assault can also attract criminal liability under Section 351 of the Indian Penal Code,
1860.
• In R v. St. George, it was held that there need be no actual intention or power to use
violence for it is enough if the plaintiff on reasonable grounds believes that he is in
danger of it. Thus it is actionable to point a gun at a man in a threatening manner even
though to the knowledge of the defendant but not to the plaintiff it is unloaded.

• In Stephens v Mayors, the defendant advancing with clenched fist upon the claimant
at a meeting, was stopped by churchwarden who sat next by one to the claimant. The
court held that it amount to an assault. It has been held that immediate intention to carry
out his threat into effect is the most important factor. Physical touching or impact is not
needed in the case of assault.
 BATTERY
• The use of force against someone in such a manner that it results in having a
physical contact or injury can be termed as a battery.

• According to Winfield a battery is the intentional and direct application of force to

another.

• So even to touch a person without his consent or some other lawful reason is
actionable. No anger or hostility is essential to liability. An unwanted kiss may be a
battery. Thus intentionally bringing any material object into contact with another’s
person is sufficient application of force to constitute a battery for example to throw
water upon him, or to pull a chair from under him whereby he falls to the ground.

• Sec 350 of I.P.C. holds the person criminally liable for battery.
Thus to constitute a tort of battery two things are essential, they are:

1. Intentional use of force: The intention which is required in battery is not the
intention to hurt the claimant but the intention to apply physical force.

2. Application of Force without lawful justification: The application of force against

another person without lawful justification is another necessary ingredient of battery.
Any physical contact with the body of or clothing of a claimant is sufficient to amount to
force. If there is a forcible contact no damage is necessary for trespass is actionable per
se.
MAYHEM:
• Mayhem is a type of battery and includes all the essential ingredients of battery.

• Mayhem is a tort that causes severe injury to the victim such that he is unable to
defend himself from the tortfeasor.

• Mayhem deals with the loss of any body part due to physical injury caused by the
tortfeasor. Thus if as a result of battery a person is deprived of a bodily member useful
in a fight the tort is called mayhem.

• In Hurst v. Picture Theaters Ltd, It was held by the court that mayhem is a bodily
injury which deprives a man of the use of any organ or any sense which can be of use
in fighting or by loss of which he is generally and permanently weakened but the
bodily injury is not a mayhem merely because it is a disfigurement.
 FALSE IMPRISONMENT
• The wrong of false imprisonment consists in the intentional act of arresting or
imprisoning any person without lawful justification or otherwise preventing him
without lawful justification from exercising his right of leaving the place in which he
is.

• It may also be committed by continuing a lawful imprisonment longer than is

justifiable.

• In the IPC, it is defined as wrongful confinement under Section 340.

• Article 22 of the Indian Constitution provides for protection against unlawful arrest.
• The essential requirement for this is:

1. There should be a intentional total restraint on the liberty of a person: The

restraint imposed upon the claimant must be total restraint to amount to false
imprisonment so if there was a reasonable escape route there will be no false
imprisonment.

So held in Bird v. Jones, in this case the defendant wrongfully enclosed a part of the
public foot way on a bridge, put seats in it for the use of spectators to view the boat
race in the river. The plaintiff insisted on passing along this part of the enclosure.
The defendant refused to let him go forward but told him that he might go back into
the carriage way and cross to the other side of the bridge if he wished. He declined
to do so and remained in the enclosure for 30 minutes. On being sued, it was held
by the court that the plaintiff’s movement was not restrained in every direction.
2. There should not be any lawful justification: When there is some justification for
detaining a person, there is no false imprisonment. Hence that the total restraint or
detention should be unlawful or without any lawful justification.

Rudal Shah v. State of Bihar, the Petitioner was acquitted by the court 14 years later.
The state tried to justify the detention by pleading medical treatment of the
petitioner for his mental imbalance. The plea was rejected in a writ of habeas
corpus by the petitioner.

Bhim Singh v. State of J. & K., an MLA of the J. & K. Assembly was wrongfully
detained by the police in order to prevent him from attending the session. Supreme
Court granted exemplary damages amounting to Rs. 50,000 for the unlawful
detention.
DEFENCES:
1. Volenti non fit injuria:
If the plaintiff gives his own consent freely without any external influence to the
curtailment of his own liberty, the defendant causing it shall not be held liable for
the tort of false imprisonment.

2. Partial Restraint:
If the restraint imposed was not complete or total restraint providing the plaintiff
with the opportunity and scope to escape that is if restraint is partial in nature, false
imprisonment will not come into effect.

3. Arrest by Public Authority:

Where the defendant apprehends any breach of peace or any disturbance of public
tranquility from the plaintiff, he may be kept under preventive detention by the
public authorities. Police and other law enforcement agencies quite often invoke
this measure for maintenance of public peace.
4. Judicial Authority:
An arrest or detention of a person by a judicial authority in exercise of its judicial
power is justified in law and the authority ordering the arrest shall not be liable.

The Judicial Officers Protection Act of 1850 states that no suit will lie against a
judicial officer for false imprisonment or for any other tort or acts committed by
him in his judicial capacity believing in good faith that he was acting within his
jurisdiction.
REMEDIES:
1. Self Help:
By using reasonable and proportionate force, the plaintiff who is held under captivity
can make attempts to free himself or herself. This is a type of extra-judicial remedy
that is a sort of remedy that can be brought into use without approaching the Court of
law.

2. Writ of Habeas Corpus:-

This remedy, considered to be the most appropriate in this kind of a tort is a form of
legal remedy. The plaintiff can seek for the issue of the writ of habeas corpus under
Article 32 of the Supreme Court of India and Article 226 of the High Court of India.
This writ lays down that if a person has allegedly put under confinement a person
unlawfully or without just reason or falsely, that person must produce before the court
the imprisoned or detained person.
3. Action for Damages:-
Damages as claimed under this tort are to be assessed only during the time of
confinement. A person who has been falsely imprisoned can claim damages which may
include damage for mental disgrace and humiliation apart from the obvious loss of
liberty from the defendant. The quantum of damages varies from case to case and
depends on the individual circumstances involved in the case.
 TRESPASS TO LAND

• Trespass to land refers to the wrongful interference of one over the property of
another without any legal justification.

• Trespass should be direct and physical. It requires no force, unlawful intention,

damage nor the breaking of an enclosure.

• Trespass to land is more of a right over the possession of property rather than
ownership of property and it is the encroachment by some way by the defendant of
such right. 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.”
 DEFINITIONS:
• According to Winfield: “ Trespass to land is the name given to that form of trespass
which is constituted by unjustifiable interference with the possession of land”.

• According to Ratanlal & Dhirajlal: “ It is an unwarrantable entry upon the land of

another or any direct or immediate act of interference with the possessions of land.”

• According to Street: “Intentionally or negligently entering or remaining on , or

directly causing contact with land in the possession of another is a trespass.
 TRESPASS & NUISANCE:
• If the interference with land is direct, then it will amount to Trespass. However if it
is indirect or consequential, the wrong may be a nuisance.

• Trespass is actionable per se. Nuisance is actionable only on proof of damage.

• In trespass only the person in direct possession (including tenant) of land can sue.
Whereas in Nuisance a person who is indirectly affected may sue.

• The interference in trespass is always through some tangible object whereas in

nuisance it may be through the medium of intangible objects such as smell,
vibrations, fumes, etc.

• Example - 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.
 METHODS OF TRESPASS

Any interference with the possession of land without justification signifies

trespass to land. Trespass may be committed by the following methods:

1. By entering upon the land of the plaintiff:

It consists entry by the defendant or by some other person or animal through his
procurement into land or buildings occupied by the plaintiff. It is the most common
form of trespass.
Some physical contact with the plaintiff’s property is enough to constitute the tort of
trespass. There may be sufficient physical interference if matter is deliberately placed
in the plaintiff’s property.

In Perera v. Vandiyar, it was held that going beyond the purpose for which a person
has entered certain premises or crossing the boundary where he has the authority to go
amounts to trespass.
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.

In Municipal Board of Kanuj v. Manoharlal, it was observed that not only entry on
the land but also above the surface of the earth and entry into the lower regions of the
land will constitute entry.
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.

• This was governed by the principle enshrined in the maxim cujust est solum ejus est
usque ad coelume, it means whose is the soil his is also that which is above it. This
maxim does not mean ownership over the infinite space, it means only that portion of
air space which is capable of being reduced into private ownership.

• In India, the Aircraft Act of 1934 makes it a punishable offence for any person to
willfully 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.
2. By remaining there:
Even a person who has lawfully entered on land in the possession of another
commits a trespass if he remains there after his right of entry has ceased.

In Timothy v. Simpson, a customer who entered a shop insisted that he should have the
goods at the price marked over it. As the wrong price marking was made thereon the
shop keeper refused to sell at that price. As he insisted to purchase he was told to leave
the shop with which he did not comply. This made his right of entry come to an end
and he was a trespasser as he was there against the will of the owner.
3. Trespass by placing things on land:
The person may commit trespass not only by entering himself on the plaintiff’s
property or land unlawfully but also by placing things, objects and materials on the
plaintiffs land or causing them to enter upon the plaintiffs land.

Example: Planting a poisonous tree in the land of another person.

 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.
 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 of the Specific Relief Act, 1963 gives 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 profits 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.

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.

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.
 DEFENCES
1. 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. Example- 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.

• Example - A licence to see a movie 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.
2. Exercise of easement and prescription: It means as the effect of lapse of time in
creating and destroying rights. In these cases the plaintiff is prevented to sue against the
defendant by the law of limitation.

3. Retaking of goods: Entry of another land for taking of ones on goods or chattels, if it
is made peaceably is justified by inference of an implied license.

4. Necessity: If the entry to a land is done out of necessity or to prevent a greater harm
then that will be a good defence.

5. Statutory authority: If the entry in the land is authorized by law then it will not
amount to trespass.