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.
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.
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(a) Possession in fact (de facto possession) e.g. - servant's possession |
(b) Possession in law (de jure 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.
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.
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.
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.
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.
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.
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.'
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.
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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.
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(i) a bare licence can be revoked; to give permission to demolish the building is a licence. |
(ii) a licence coupled with grant can't be revoked; to give 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 ś 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.
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.
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 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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