Trespass means transgression or causing injury or damage to the right of person or property by going beyond one’s right. It is also called encroachment. During the 13th century, writ of trespass could be invoked as remedy in respect of trespass to person and property with a movable horrible. However, with the introduction of action to fortress pass on the case, transpires assumed three different forms namely-
1. Trespass to person (assault, battery, false imprisonment)
2. Trespass to land
3. Trespass to goods
DEFINITION
Trespass, merely trespass to land is any interference with the position of land without lawful justification. The interference with possession of land is direct through some tangible object. If the interference is not direct but consequential, it will be actionable as a tort of nuisance and not trespass. Trespass could be committed in two ways, either by the person himself or herself entering the land of another person or doing the same through some material, tangible object stairs, throwing stones on another person’s land or driving a nail into his wall or leaving debris on the roof.
Trespass to land besides being an actionable tort is also an offence punishable under the Indian Penal Code, 1860. It has been defined in section 441, IPC.
ESSENTIALS TO TRESPASS
The essential ingredients of trespass to land may briefly be stated as follows-
The plaintiff must be in exclusive possession of the land.
Defendants entry into that land or remaining there for however short time, and
Such entry should be without any lawful justification
HOW TRESPASS MAY BE COMMITTED
1. By wrongful entry.
2. By remaining on the land.
3. By placing things in another’s land.
4. Animal trespass.
AERIAL TRESPASS
The presumption in the law is that a person in possession of land also has the possession of the subsoil underneath that land and the air space over the land up to the sky. Thus, taking minerals from the subsoil below the land would be trespass. Though literally speaking, the entire airspace above a person’s land in possession belongs to him, but for the purpose of aerial trespass, the land owners right and airspace extends only to such height as is necessary for the ordinary use and enjoyment of the land and structures on it.
TRESPASS AB INITIO
When a person enters upon a land under a valid license or lease and remains there even after the expiry of the period of the license, he becomes a trespasser and can be ejected by giving a prior notice. In such cases the person who misuses the permission given to him for entry into the land becomes a trespasser ab- initio, as if his original entry into the land was unauthorized. That is to say, it shall be treated as if it was never granted. The same rule applies to person who ingest upon one’s land under a statutory authority for instance, the landlord’s right of distress for rent or entry of policemen to serve a warrant or entering in, but commit some unlawful act like assault, and theft etc. He shall be liable for trespass ab- initio because of abusive entry or license. Mere nonfeasance that is known performance of an act or duty is not enough to make the entrant trespasser up in issue unless he has done some positive unlawful act of misfeasance.
CONTINUING TRESPASS
Trespass, be trespass over land or by placing things on the plaintiff’s land, is a tort of continuous nature and gives rise to actions from day to day so long as it continues. As if a person throws a heap of stones or builds upper war on his neighbor’s land and leaves it there, the right to action will continue from day to day until the course of trespasses removed. A continuing trespass is in low, and you trespass until it is abated. A person who unlawfully disposes the original possessor of the land, will be treated as a trespasser. He has no right to say in defense that the original possessor was not using the land for any purpose or that the land was lying vacant. But the trespasser disposes the owner and occupier of the land, it will not be a continuing trespass because the continuing trespass against the owner came to an end the very day on which he was disposed by the trespasser.
TRESPASS IS ACTIONABLE PER SE
The thought of trespass is actionable per se, that is, the plaintiff need not prove any damage in a suit for trespass. The plaintiff need not prove any wrongful intention on the part of the defendant and he will be liable even if he enters upon the plaintiff’s land honestly believing that it was his old land. However, inevitable accident has been held to be a valid defense in an action for trespass.
About the author –
This article is written by Fiza Hussain, second year BBA LLB student at the School Of Legal Studies, Cochin University of Science and Technology, Cochin
