CHAPTER 10

Trespass to Land

1. Introduction

Trespass means to enter unlawfully upon another's land or unjustifiable interference

with the possession of land. It is a wrong against possession rather than ownership.
Possession is an important factor relating to trespass.

2. Possession

Define possession. Distinguish between possession-in-fact and possess-in-law.

Possession means to have something at one's own disposal or exclusive right to use
it. It is protected in its own right.

Salmond-

"the possession of a material object is the continuing exercise of a claim to

the exclusive use of it." It has got two elements-mental as well as physical.
The mental element is called as 'animus' and the physical element is known
as 'corpus'.

Animus denotes intention of the possessor with respect to thing and corpus consists
in the external facts in which this intention has realised, embodied or fulfilled itself.

Physical possession of a thing doesn't give right of possession who holds it. For
example, A has gone to a car show room and he is examining the various features of
the vehicle and taking the test drive. During driving the car, the car is in his custody
but not in his possession. But, if he runs away with the car, he is in full possession of
it. Here, he has got necessary animus and possession both, and can exclude others
except the car shop-owner. So, the wrongful possession is protected by law against
all except the real owner of the car i.e., car shop-owner.

Possession

(a) Possession in fact (b) Possession in law

(de facto possession) (de jure possession)
e.g. - servant's possession e.g. - master's possession

Here, the servant's intention is to exclude others on behalf of his master and he can
maintain an action under trespass against those who interfere with the possession of
 property or article. Whereas a master's intention is to exclude others from interfering
with the thing and he does so on his own behalf.

There is also a difference between 'right to possession' and 'right of possession'. If A

is a landlord who sublets his premises to B for 11 months, it means A has right to
possession after expiry of 11 months and during this period the tenant has right of
possession. A person who has right of possession is entitled to sue for trespass and
not he who has right to possession.

3. Trespass

If, someone interferes with the possession of land without justification, then it is
called trespass. It is also an offence under section 441 of the I.P.C. provided the
requisite intent is present. The interference can be done by actually dispossessing of
the land or by intruding upon it or by doing an act affecting the sole possession of the
owner, in each case without justification.

4. Entry - Must in trespass

'A person is thrown upon the other main's land by someone else'佑 an it be said
thatit is a trespass?

If a person enters a land assuming it as his own although it belongs to someone else,
he has committed the wrong of trespass. Any voluntary intrusion upon land without
the consent of the person having possession or right of immediate possession is a
trespass to land. It is actionable even without proof of damage. Trespass of land is
committed by intrusion of any sort of entry or contact directly from an act of
defendant e.g.-

(i) placing a ladder against premises - Wetripp v. Beldock, (1938) 2 All ER 779.

(ii) driving a nail into a wall of another - Lawrence v. Obee, (1815) 1 Stark 22.

(iii) growing a creeper upon it - Sunpson v. Weber, (1925) 133 LT 46.

(iv) placing rubbish against the wall of another - Gregory v. Piper, (1829) 9
B&C 59.

are all examples of trespass.

But, if the entry is involuntary then it does not amount to trespass. When a person is
thrown upon the other man's land by someone else then it is not a trespass. (Smith v.
Stone, 1647 Style 65).
 A person who has got permission to enter one part of a building or enclosure has got
a license to visit that particular part and not the entire building. If, a person who has
been allowed to sit in the drawing room goes to bedroom without any justification, it
is called trespass.

Trespass can also be committed by an agent or with some material object. To throw
a stone or grazing grass by the cattle on other's land also come under trespass.

If A plants a tree on his own land and its roots and branches spread on B's land then
it amounts to nuisance but if A plants a tree on B's land then it is trespass. If a person
(A) owns a land its sub-soil also belongs to him and if another person (B) makes a
tunnel beneath the land owned by A then it is a trespass. It is also possible that land
is owned by one person and its sub-soil belongs to other then in such case if anyone
who walks over the land this will be the trespass against the land owner and not who
owns the sub-soil.

5. Trespass on Highway

If someone's land spreads over highway then the soil cover of such land is presumed
to be owned by that person. Here, the action for trespass can be maintained only
when the trespasser makes an unjustifiable and unreasonable use of land. In such
cases, the plaintiff has to prove negligence on part of defendant.

In the case - Harrison v. Duke, (1893) 62 LIQB 117, it was the observation of the
court that the public interest in the highway is to have the right of passage. If, it is
used in a reasonable way, then it is not a trespass, but if it is used unreasonably then
the user will be liable for trespass.

6. Trespass in the airspace

The maxim cujust est solum ejus est usque ad coelum means, whose is the soil his is
also that which is above it, and the trespass in airspace is governed by this maxim.
But, it doesn't give ownership over the infinite space and the portion of airspace
which is capable of being reduced into private ownership.

Trespass in the airspace can be committed through aircraft or otherwise.

In England and India, there are statutes to regulate aircraft trespass. As per
England's Civil Aviation Act, 1949 (section 40) no action will lie for trespass or
nuisance if aircraft flies over a reasonable height. But, if the material damage is
caused by the aircraft, the aircraft owner shall be liable for damages without proof of
negligence.
 In our country the Aircraft Act, 1934 with Aircraft Amendment Act, 1960 makes the
act of a person punishable who wilfully flies an aircraft in such a manner so as to
cause danger to any person or his property, but it contains no provision of civil
liability as it has been given in the English Act.

7. Trespass ab initio

Discuss the following�

(a) Trespass in the airspace

(b) Trespass ab initio

(c) Continuing trespass

If a person enters certain premises and he has been authorised by law to do so, after
entering the premises he abuses that authority, it is trespass ab initio. It means law
considers a person as a trespasser from the very beginning even if he had entered
there lawfully under the presumption that he had gone there with that wrongful
purpose in mind. A man becomes trespasser ab initio only when his act amounts to
misfeasance and not non-feasance.

(a) misfeasance - to do a wrongful act

(b) non-feasance - omission to do something

In the case of Six Carpenters,1-all the carpenters entered in an inn and ordered for
some wine and bread. After having wine and bread, they refused to pay. The Court
held that they were not trespassers ab initio since, the case was of only non-payment
it was non-feasance and not a case of misfeasance.

8. Continuing Trespass

If a man is building a wall or throwing stones on others land it is called as continuing

trespass till it is removed from the place. The right to sue in such cases will continue
from day one till it is removed. In the case of Holmes v. Wilson, (1839) 10 Ad&E 503,
it was held that recovery of damage in the first action, by way of satisfaction does
not operate as a purchase of the right to continue the injury. Where the plaintiff has
been completely dispossessed or ousted, the resulting injury is complete on the day
of plaintiff's ouster and then there will not be space from applying the principle of
'continuing trespass.'

9. Entry with Licence

Define licence with the help of relevant case.

 Licence means authority granted and entry with licence means to enter some
premises for which the person has been authorized by the one who has got the
possession of the said premises.

______________

1. (1610) 8 Co Rep 146a.

According to section 52 of the Indian Easements Act, 1882 Licence means -

"Where one person grants to another, or to a definite number of persons a

right to do, or continue to do, in or upon the immovable property of the
granter, something which would, in the absence of such right, be unlawful,
and such right does not amount to an easement or on interest in property, the
right is called a licence."

To permit a person to demolish an old house is an example of licence. After the

licence is revoked, the licensee must quit the place within reasonable time. If he does
not do so, he will become a trespasser.

Types of Licence

(i) a bare licence can be revoked; (ii) a licence coupled with grant
to give permission to demolish can't be revoked; to give
the building is a licence. permission to demolishthe
building and to carry
away the bricks and iron
equipments is a grant - is a
licence with grant.

In Hurst v. Picture Theatres Ltd., (1915) 1 KB 1, Mr. Hurst purchased a ticket to watch
a movie show at defendant's theatre. He went inside the theatre and took the seat
but he was forcibly taken out of the theatre.

He sued for assault and the Court awarded � 150 as damages. It was the
observation of Buckley, L.J., that right to go into the theatre was a licence but right to
see and enjoy the movie from beginning to end is a grant. So, it was a licence
coupled with a grant.

10. Remedies

Right to re-enter
 The person who is entitled to possession can re-enter the premises in a peaceful
manner. To oust a trespasser is not a wrongful act if the person has a right to do so.
In Hemmings v. Stoke Poges Golf Club, (1920) 1 KB 720, the plaintiff was a tenant of
a cottage owned by the defendant. Defendant was terminated from his service and
then he wanted to take the possession back from the plaintiff and for that purpose he
gave a notice to him. But, the plaintiff refused to vacate the cottage. The defendant
then entered the cottage and removed the plaintiff and his furniture with reasonable
force. The suit was brought by the plaintiff for assault, battery and trespass but the
Court rejected all that.

Action for ejectment or recovery of land

Under the Specific Relief Act, 1963, a person who has been dispossessed of
immovable property can get a speedy disposal of his case.

Section 6-

"If any person is dispossessed without his consent of immovable property

otherwise than in due course of law, he or any person claiming through him
may, by suit recover possession thereof, notwithstanding any other title that
may be set up in such a suit. No suit under this section shall be brought after
the expiry of six months from the date of dispossession."

So, under this section one can get his immovable property back establishing any title.
But, there are some criteria which have to be fulfilled before evoking this section by
the plaintiff and these are-

(i) he was in possession of certain premises or immovable property,

(ii) he was evicted by the defendant without due course of law; and

(iii) the suit has been brought within 6 months from the date of his
possession.

Moreover, this section gives relief to those who is in lawful possession of immovable
property.

Distress damage feasant

Distress damage feasant is also a remedy which empowers a person in possession of

land to seize the trespassing cattle or other chattels and detain them until
compensation (equal to destruction caused by cattles or chattels) has been paid to
him.
It has to be mentioned here that right to detain an object is only when it is
trespassing on the land and not when the trespass is over and the object is not on
the land.

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