This article is written by Anushka Singh. She is a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain trespass to land under the tort law.
Trespass can be defined as an unjustifiable interference or an act done with the intention to harm someone’s land. The act of trespass must be direct and intentional. It is not mandatory for the plaintiff to prove that harm was suffered as trespass is actionable per se. Legal maxim ‘Quare clausum fregit’ defines land such that it includes the structures built on it but also the airspace above it and the soil below it. An action for trespass can be claimed if any of these mentioned are infringed.
Essentials for Trespass to Land
The essentials for trespass to land areas follows-
- Entry on the land should be made without permission or should be illegal.
- Entry should not be forced; it should be due to negligence or reasonable mistake but must be voluntary.
- Entry must be intentional.
- The land must be owned by the plaintiff.
Therefore, every interference without any legal authority or consent amounts to trespass.
Types of Trespass to land
1. Unauthorized entry to the land
If an individual enters the land owned by someone else without his consent this action will amount to trespass. It remains irrelevant if the defendant’s trespass was a reasonable mistake or was simply negligence, if he committed the trespass voluntarily, he will be held liable.
In the case of Basely v. Clarkson, while mowing his lawn the defendant accidentally crossed his boundary and entered his neighbours land, believing it to be his own. The plea of mistake by defendant failed as his entry was voluntary.
In the case of Smith v. Stone, it was held that if person A throws person B on C’s land. Then B will not be held liable for trespass as his entry to C’s land was involuntary.
2. Continued trespass
A person who enters another’s land with his permission but stays on the land after the given permission has expired, commits a trespass. This action will also make his initial entry into the house tortuous in nature and that person can be held liable for all the acts he has subsequently committed after his entry. This is known as trespass ab initio i.e. trespass from the start.
In the case of Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath it was held that if the entry on another’s land was made with consent but is subsequently abused and long after that consent has expired, this amounts to trespass ab initio.
In Minister of Health v. Bellotti, an official whose license has expired or terminated can be sued as a trespasser if he does not vacate the said land in a given time.
3. Trespass by interference with others land
Any disturbance or activity which may cause interference with neighbours/others land will also count as trespass. This includes activities like throwing stones, releasing gas/ fumes on neighbour’s land, placing chattels on another’s land, etc.
In Abdul Gani v. Sadu Ram and Others, it was held that discharge of filthy water from a tube in the defendant’s house will amount to trespass on plaintiff’s land.
There are several defences to trespass to land-
License is when permission to enter the land has been given in an implied manner or expressed manner. The permission can only be given by the person who owns the land. After a license is revoked or expired, the license holder becomes a trespasser if they continue to stay on the land.
- Justification by law
In these situations, entry is granted by statutory authorities; permitting an individual to enter someone’s property.
- Jus tertii
In this scenario, the defendant proves that the plaintiff is not the true owner of the land, but instead the land is owned by a third party. This defence is not available if the plaintiff is a tenant living on defendant’s land. And had no right to put the apartment on rent or sublet it unauthorized.
Necessity is when the situation calls for a trespass to be committed in order to avoid a bigger accident. Here the trespass is committed intentionally. However, this defence does not allow the defendant to entre another’s persons land if there is an alternative course of action.
This remedy allows the plaintiff to claim any damages he may have suffered because of the infringement of his land.
An injunction is a court order seeking which puts an immediate stop to the infringement of the land. For example- A is the neighbour of B and has 2 kids which keep throwing stones at B’s windows causing distruction. Here B can get an injunction to stop the trespass by A’s kids.
However, for the plaintiff to avail any of these remedies he has to prove that he was the owner of the land when the trespass was committed or that the land was in his possession. According to Salmond- “the possession of a material object is the continuing exercise of a claim to the exclusive use of it.” It constitutes two elements; ‘animus’ being the mental element and ‘corpus’ being the physical.
Trespass is faced by many people on a daily basis, which is why it is crucial to understand the nature of the trespassed act, the remedies and defences there are. Hence when deciding a trespass of land matter, these four tests should be paid heed to-
(1) What is the character and nature of trespass?
(2) The nature of property should be considered.
(3) The seriousness of the trespass; and
(4) The impact or consequences of the said trespass on the property.
This would help uncover various sides to the matter and understand all its dimensions. The true meaning and intention need to understood behind these infringements only then proper evaluation and resolving of cases can begin.
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