• Lex Specialis

Trespass to Land Under the law of torts

- Niyati Nagar


The word trespass is used in three different senses depending upon the variance in the degree of generality. In its widest amplitude, it includes any wrongful act, a transgression of the rule of right. This is the original significance of the term trespass in law. The second interpretation is narrower and is in the legal sense, meaning any legal wrong for which the appropriate remedy is available in the treaties of torts i.e., writ of trespass. The last meaning is particular in nature and deals only with the tort of trespass to land.


Definition


The tort of trespass to land consists (trespass quare clausum fregit) is entering or remaining upon the land which is under the possession of another person i.e., plaintiff. Placing or projecting any object upon the land of the plaintiff is also a trespass to land. All these actions need to be without lawful justification in order to qualify as trespass to land. In simple terms, trespass to land is an unlawful intrusion into another person’s property without their consent or any lawful authority. Trespass to land is actionable per se and is under the category of strict liability torts. Entick v. Carrington


Methods of trespass to land

  1. Trespass by wrongful entry: It is the most common type of trespass. It is the personal entry by the defendant, or by some other person or animal through his procurement, into land or building occupation of which is with the plaintiff. For example, putting one’s hand into the plaintiff’s window. The only requirement for the tort is some physical contact with the plaintiff’s property and crossing of the boundary is not essential. The matter constituting a trespass need not be tangible. For example gas and electricity. However, deprivation of such intangible facilities does not constitute trespass because there is no physical contact with the property of the plaintiff.

Even he who has a right of entry on the land for a specific purpose commits a trespass if he enters for any other purpose under any other claim or title apart from that under which he might lawfully enter.

  1. Trespass by Remaining on land: A person who has lawfully entered land in possession of another commits trespass if he remains there after his entry has ceased. Refusing to leave land or vehicle or any other property is the same as it was entered originally without right.

  2. Trespass by placing things on land: Placing anything on the plaintiff’s land is trespass. Further, causing any noxious substance or physical object to cross the boundary of the plaintiff’s land, or simple physical contact with the land is trespass. For example, dumping garbage beside the wall of the plaintiff’s property. Such a trespass can also be termed as a nuisance in law. The plaintiff has to prove direct injuries due to such contact.

  3. Continuing Trespass: tRespass lasts for as long as the personal presence of the wrongdoer is on the land and this gives rise to actions de die in diem. The same circumstances attune those trespass which is by way of placing an object on the plaintiff’s land.

  4. Trespass beneath and above the surface: A person who owns the land also owns the surface above and beneath that land. Any entry therefore beneath the surface, at whatever depth it may be, is actionable trespass. With respect to the surface above the land, a private owner of land has the right to use the air space to the exclusion of all the others. Therefore, overhanging branches of tree frown in defendants’ land can also constitute a trespass. Lemmon v. Webb

With respect to aircraft and spacecraft, the actions are governed by International Laws and domestic statutes.


Trespass ab Initio


When entry, authority, or license is given to any person by the law, and the person abuses it, he/she shall be considered as trespasser ab initio. The rule is that an authority when abused by a wrongful commission of an act under the garb of that authority, the right is retrospectively canceled to bring the action into tort of trespass. This retrospectively is what gives it the nature of trespass ab initio. The rule is primarily a rule of procedure and thereby makes the original lawful entry also actionable under law.


The rule of trespass ab initio has a limited application and applies to acts done in pursuance of an “entry, authority, or license given to anyone by the law” Six carpenters’ case; application of this rule is only when there is a subsequent abuse amounting to positive wrongful act as opposed to the mere omission or non-feasance. Moreover, in order to prove trespass ab initio, the abuse has to be in reference to and so takes away the entire ground and reason of the entry. Chic Fashions Ltd. v. Jones.


Remedies

  1. Compensation for the injury caused: Plaintiff has a right to compensation for the injury caused by the trespasser and such a measure of compensation depends upon the nature of the property and injury so inflicted. In case of permanent injury to real property the compensation is determined on the basis of the fair market value of the concerned property, whereas in temporary injury cases the repair cost or restoration cost is a general award. It is otherwise as prescribed by the codified laws and discretion of the court.

  2. Injunction: injunction is a remedy against the continuing trespass. An injunction is a court order ordering the party to either do or omit them from doing an act.

Defenses

  • Accidental Trespass

There is no rigid position for contributory negligence as a defense. Also, accidental or involuntary trespass is not argued per se in cases of trespass to land. However, the same is a valid defense in trespass to person and chattels. National Coal Board v. Evans & Co. In addition, trespass can be claimed accidental if, for example, one’s dog enters the land without the defendant’s supportive action. League Against Cruel Sports v. Scott.

  • Statutory rights of entry

A person is not considered liable for the tort of trespass if they have a legal authority which permits them to be on the plaintiff’s land. For example, police with a warrant. Income tax officer with the order by the competent office under the statute, etc.

  • Consent

Consent or license is the permission to enter on the land by not law but the owners of the land themselves. Such consent can be either express or implied. Express consent when X brings a home decorator to his property. Implied consent when X’s house-building has a doorbell, anyone ringing it get into the notice of X would not be charged for trespass for it is physical contact with X’s property.

  • Necessity

Necessity is of two types private and public necessity. The private necessity arises with the need to protect that plaintiff’s property or defendant’s property from harm. For example, X’s house is on fire, B in order to save it from further destruction enters into X’s property and uses the water hoe to bring the fire down.


Public necessity is when the larger public safety is involved. In the above example, assume that the houses in the locality are adjacent to each other, If X’s house is on fire, the fire could spread to the whole locality. Therefore an action to stop such fire will not be a trespass to X’s property.


In order to claim this defense, there is a requirement of actual damage and the acts of the defendant must also be reasonable in the light of particular facts.



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