[2] Trespass to Land
Trespass to land means “interference with the possession of land without justification.” To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is necessary. “Every invasion of a private property, be it even so minute, is a trespass.” “If the defendant places a part of his foot in the plaintiffs land unlawfully, it is in law as much a trespass as if he had walked half a mile on it” [Ellis v Loftus Iron Co. (1874) LR 10 CP 10].
Trespass may be committed
(1) By entering upon the land of plaintiff, or
(2) By remaining there, or
(3) By doing an act affecting the sole possession of the plaintiff, in each case without justification.
Trespass could be committed either by a person himself or doing the same through some material object e.g. throwing of stones on another person’s land, driving nails into the wall, allowing the diffusion of gas or invisible fumes, leaving debris upon the roof, allowing cattle to stray on another person’s land. It is, however, no trespass when there is no interference with the possession and the defendant has been merely deprived of certain facilities like gas and electricity.
A man is not liable for trespass committed involuntarily (e.g. when he is thrown upon the land by someone else), but he is liable if the entry is intentional, even though made under a mistake, e.g. if in moving in his own land, a man inadvertently allows his blade to cut through into his neighbour’s field, he is guilty of a trespass. An entry upon another’s land constitutes trespass to land whether or not the entrant knows that he is trespassing [Joliffe v Willmett & Co. (1971)1 Al l ER 478]. If the defendant consciously enters upon a land believing it to be his own but which turns out to be of the plaintiff, he is liable for trespass. The defendant may successfully plead inevitable accident in his defence. Trespass in civil law differs from that in criminal law on this point. According to Sec. 441, IPC the offence of criminal trespass consists in entering or remaining on the land of another person with intent to commit an offence or intimidate, insult or annoy any person in possession of such property.
Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful. An owner of land who neither has possession nor any immediate right to possess it, cannot bring an action for trespass.
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. It is necessary that the person to be made liable as trespasser ab initio must do some positive wrongful act (misfeasance) rather than a mere omission to do his duty (non-feasance). Thus, refusing to pay for the refreshment in an inn does not make the visitor a trespasser ab initio as non-payment is a mere act of non-feasance which is not enough for a trespass ab initio [Six Carpenter r case (1610) 8 Co. Rep. 146a].
Defences to Trespass
Any justifiable entry or interference will negative liability for trespass. Justification by law, private defence, inevitable accident, necessity and parental authority, etc. is well recognised lawful defences for trespass. It may be noted that every continuance of trespass is a ‘fresh’ trespass, in respect of which a new cause of action arises from day to day as long as the trespass continues.
Remedies for Trespass
(i) Re-entry – The person entitled to possession can enter or re-enter the premises in a peaceable manner.
(ii) Action for ejectment – A person in lawful possession when dispossessed of certain immovable property without due course of law, can recover back the property by Sling a suit within 6 months of his dispossession.
(iii) Action for mense profits – Apart from the right of recovery of land by getting the trespasser ejected a person who was wrongly dispossessed of his land may also claim compensation for the loss which he has suffered during the period of dispossession. Mense profits refers to the profits taken by the defendant during the period of his occupancy.
(iv) Distress damage feasant – This right authorises a person in possession of land to seize the trespassing cattle or other chattels. He can detain them until compensation has been paid to him for the damage done.