Trespass Under Law Of Torts - jetty study

MEANING

Trespass is the direct interference with another person or his property, which infringes the person’s right to enjoyment of his land, possession of his goods or freedom of movement,TRESPASS IS ACCOUNTABLE PER SE, This means that the claimant only needs to show that the trespass occurred, although it is not necessary to show that the defendant caused any damage or injury.

TRESPASS CAN BE CATEGORISED INTO TWO TYPES:

• Trespass to person
• Trespass to property and goods

DEFINITION OF TRESPASS TO PERSON

It is an unreasonable interference, with malafide intentions, with an individual’s body which is committed either by causing physical harm or by the apprehension of use of force. It is further divided into ASSAULT, BATTERY AND FALSE IMPRISONMENT.

ASSAULT

Under the statutes of various common law jurisdiction, assault is both a crime and a tort. Generally, a person commits criminal assault if he purposely , knowingly , or recklessly inflicts bodily injury upon another , if he negligently inflicts bodily injury upon another by means of dangerous weapon; or if through physical menace, he places another in fear of imminent serious bodily injury. unreasonable fear. SECTION 351 OF IPC DEFINES ASSAULT

In the case of R V. S. GEORGE, a person took out the gun pretending it to be loaded and pointed out to the other person. The other person, in the apprehension of fear, suffered shock. The person was held liable. It did not matter whether the gun was loaded or unloaded. But the foreseeability of the person of apprehension of fear did matter. In the same case if the gun pointed the back and the person was not aware of it, then this act would not constitute assault.

Similarly in the case of R V. CONSTANZA, the defendant mailed eight hundred letters to the plaintiff. Along with this, the person also wrote offensive words on the main door of the plaintiff which made her suffer clinical depression. The defendant was held liable for the assault and was penalised as well.

ESSENTIALS OF ASSAULT INCLUDE :-

• Intent ,
• Apparently ability to carry out the purpose
• Apprehension
• Knowledge of threat

BATTERY

The use of force on the person of another without lawful justification. Battery consists of touching another person hostilely or against his will directly or indirectly, however, slightly. Direct force can be like slapping a person whereas indirect force is like setting a dog behind a person or spitting on a person. Battery corresponds to ‘use of criminal force’ according to the SECTION 350 OF THE IPC. What is necessary is that the wrongful act must involve physical contact.

In the case of STANLEY V. POWELL, both the plaintiff and the defendant were from the shooting party. The defendant fired his gun at a pheasant. However the bullet from his gun reverted back after striking a tree and hit the plaintiff accidentally which wounded the plaintiff. Defendant was not held liable for the tort of battery because the act of the defendant was not intentionally done.

However the use of force against a trespasser is justified and the person using such force would not be held liable. In the case of PRATAP DAJI V. B.B.& C.I. RLY., the plaintiff managed to enter the defendant’s railway company’s carriage without purchasing a ticket for his travel. He on the subsequent stops tried to purchase the ticket for himself but he failed in doing so. During his journey, he was asked for his ticket which he did not have. Since he failed in showing his ticket he was asked to step down from the carriage. The plaintiff refused to do so. On his refusal, the defendant forcefully expelled him out of the carriage. The plaintiff sued the railway company for the tort of battery. It was held that the defendant could not be held liable because the force was used against a person who was without his ticket and therefore a trespasser. Use of force against a trespasser is justified and therefore there is no liability of the defendant against the plaintiff.

Just obstruction cannot lead to the offence of battery. For instance in the case of INNES V. WYLIE, the policeman wrongfully unlawfully restricts a person from entering a club. It was held that the police officer was an obstruction like a wall just to prevent the entrance into the premises; therefore this did not constitute battery.

ESSENTIALS OF BATTERY INCLUDE

• DIRECT OR INDIRECT physical contact without lawful jurisdiction
• USE of force
• IT MUST be voluntary
• ACCIDENTAL touch or push in the market is not wrongful and doesn’t constitute battery.

FALSE IMPRISONMENT

When someone’s way is restricted unlawfully from all possible directions so as to prevent him/her from moving in a direction for some period, however short, it is called false imprisonment . In the IPC, it is defined as wrongful confinement. ARTICLE 22 OF THE INDIAN CONSTITUTION provides for protection against unlawful arrest and casts an obligation upon the state to follow due procedure while carrying out arrest related activities. SECTION 43, Cr.PC provides for arrest by a private person if he offenders and is alleged to be liable for a cognizable and nonbailable offence.

In the case of HERRING V. BOYLE, a school teacher without any justified reason refused to permit a school boy to leave the school with his mother unless the mother paid the amount of the fees which was unpaid, this dialogue between the teacher and the mother when the boy was not present there and the boy was not aware of the fact that he was in wrongful restraint. Since the person who was restrained did not have the knowledge of the fact, the court held that this did not amount to false imprisonment and the school teacher was not held liable.

In the other case of MEERING V. GRAHAM WHITE AVIATION, the plaintiff was asked to be into a room with two security guards working for the aviation company. He asked for the reason and put a condition that if he was not told the reason he would leave the room. He was told regarding the doubt of theft and therefore he agreed to stay. The guards stayed outside until the police officers arrived. It was not known to him that the guards were ordered to prevent the man from leaving the room. It was held that the act fulfilled the requirement for a person to be falsely imprisoned and therefore the plaintiff was allowed to receive the damages.

ESSENTIALS OF FALSE IMPRISONMENT INCLUDE 

• Complete restraint of liberty of person and unlawful restriction.

DEFENCES TO TRESPASS TO PERSON

• VALID ARREST :- Lawful detention of a person if there is sufficient reason to believe that the person is indulged in an offence or involved in a wrongdoing does not amount to false imprisonment. A person can also be lawfully arrested for arresting a citizen without any justified reason.
• CONSENT :- If a person voluntarily consents to be trespassed then such act would not amount to trespass. In the case of ROBINSON V. BALMIN NEW FERRY COMPANY LTD., the plaintiff wished to take a ferry across a river. To get to the wharf from which the ferry would depart, he had to go through the turnstile. The turnstile was administered by the defendants. The notices on the either side of the turnstile mentioned that one penny would be charged to use the turnstile. However later the plaintiff changed his mind and decided to go through the turnstile. The defendants again demanded one penny which the plaintiff refused to pay. As a result the defendants prohibited him from using the turnstile. The plaintiff alleged that the defendants had falsely imprisoned him. However the court dismissed the plaintiff’s contention and stated that he agreed to take the risk that if he did not pay a penny, he will not be allowed to return, and so detention by the defendants was not held to be false imprisonment.
• PROBABLE CAUSE :- Sometimes imprisonment is justified on the basis that it was alleged that the defendant was a participant in a crime. Such imprisonment is not considered as false imprisonment.
• SELF DEFENCE :- It is lawful for any person to use reasonable amount of force for self protection or protection of any other person or property against any unlawful use of force. However use of such force should be reasonable and proportionate. In the case of CRESSWELL V. SIRL, the son of defendant shot plaintiff’s dog because the dog attacked his pigs and sheep. The plaintiff sued the defendant. The Court of Appeal held there was no other way to save animals other then shooting the dog and therefore neither the defendant nor his son was held liable for the killing of the dog.

REMEDIES TO TRESPASS TO PERSON

• ACTION FOR DAMAGES :- A plaintiff can bring an action to claim damages whenever his or her body has been trespassed. Monetary damages can be claimed not only for the physical injury but also for the injury to his or her liberty.
• SELF HELP :-Self help is the remedy available to a person who has been wrongfully restrained. The person can free himself or herself instead of waiting for a legal action.
• WRIT OF HABEAS CORPUS :- Supreme Court under ARTICLE 32 and High Court under ARTICLE 226 of the Indian Constitution can issue a writ for a person who has been wrongfully detained. By this writ the individual who is detaining is required to produce the detained person before the court and rationalize his or her detention. The person would be immediately released if the court finds the reason for the detention unreasonable.

In the landmark cases of RUDAL SHAH V. STATE OF BIHAR AND BHIM SINGH V. STATE OF JAMMU AND KASHMIR, the Supreme Court has granted compensation in the writs of Habeas Corpus.

TRESPASS TO CHATTELS

TRESPASS TO CHATTELS, also known as trespass to goods or trespass to personal property, a trespass to chattels is an intentional interference with another person's lawful possession of a personal property. A "chattel" refers to any personal property, moving or unmoving. Trespass to chattels does not apply to real property or any interest in land .

GENERALLY, TRESPASS TO CHATTELS POSSESSES THREE ELEMENTS:

• LACK OF CONSENT, The interference with the property must be non-consensual.
• ACTUAL HARM, The interference with the property must result in an actual harm.
• INTENTIONALITY, The interference must be intentional.

TRESPASS TO CHATTELS typically applies to tangible property and allows owners such property to seek relief when a third party intentionally interferes or intermeddles in the owner’s possession of his personal property. “Interference” is often interpreted as the “taking” or “destroying” of goods, but can be as minor as “touching” or “moving” them in the right circumstances. In KIRK V GERGORY the defendant moved jewelry from one room to another, where it was stolen. The deceased owner’s executor successfully sued her for trespass to chattel.

REMEDIES FOR TRESPASS TO CHATTEL INCLUDE

• damages
• liability for conversion and injunction
• depending on the nature of the interference.

DEFINITION OF TRESPASS TO LAND

• GENERAL :- Trespass To Land occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any objection upon the land.
• ACCORDING TO RATANLAL, “ It is an unwarrantable entry upon the land of another or any direct or immediate act of interference with the possessions of land.
• ACCORDING TO WINFIELD, “ Trespass to land is the name given to that from of trespass which is constituted by unjustifiable interference with the possession of land”.
• ACCORDING TO STREET, “Intentionally or negligently entering or remaining on , or directly causing contact with land in the possession of another is a trespass".

This tort is actionable per se without the need to prove damage. By contrast, nuisance is an indirect interference with another’s use and enjoyment of land, and normally requires proof of damage to be actionable.

TRESPASS TO LAND :- Trespass to land is one of the oldest actions known to the common law( although it no longer is a crime at common law ) and can be defined as an unauthorised interference with a persons possession of land. It is the direct invasion of possession which is actionable , thus , once the invasion has been proved. It is for the defendant ( the person committing the invasion) to justify his actions.

There has to be an intention to interfere with the right of possessions, thus involuntary actions are not actionable. Trespass to land does not require proof of damage for it to be actionable. Thus, the defendant can’t claim that he entered the land reasonably and / or with due care.

MODES OF TRESPASS TO LAND

Trespass to land may be committed in one of the three ways :

• by entering upon the land of the plaintiff, or
• by remaining there, or
• by doing an act affecting the sole possession of the plaintiff in each case without any justification.
• TRESPASS BY UNJUSTIFIABLE OR WRONGFUL ENTRY

A wrongful personal entry by the defendant on the plaintiff’s land amounts to trespass. The slightest crossing of boundary is suffices,e.g. sitting on a fence amounts to trespass, and no actual damage need to be proved. Walking onto land without permission, or refusing to leave when permission has been withdrawal, or throwing objects onto land are all example of trespass to land. In case of BASELY V CLARKSON (1681) ,D owned land adjoining C’s and whilst mowing his own lawn he involuntarily and by mistake mowed ( cut with a blade or mower) down some grass on the C’s land. C was successful in claiming against trespass. This case is also an example of mistake entry.

Where the defendant intentionally entered into the plaintiff’s land, he may still be liable in trespass and it would not avail him to say he acted under a honest but mistaken belief that he was on his own land or that he has the right of entry or that the land is public land – UGOJI V ONUKOGU

NOTE - that SECTION 76(1) OF THE CIVIL AVIATION ACT 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable. However, SECTION 76(2) confers a statutory right of action in respect of physical damage caused by aircraft, actionable without proof of negligence.

• ABUSE OF RIGHT TO ENTRY

If the defendant refuses to leave after expiration of his right of entry or use of land, he becomes a trespasser.

Alternatively, if due to the misbehaviour of the defendant, the plaintiff revoked his right to be on the land and the defendant ignores a request to quit , he is a trespasser. – BALOGUN V ALAKIJA (1963) 2 ANLR OF 115.

Therein, A employed B as a rent collector. One night after business hours, B allowed A to enter his house, but shortly afterwards, an argument ensued and B asked A to leave and A became abusive and assaulted B. He did not leave B’s house until about fifteen minutes after he had been requested to leave. A was held liable to be in Trespass.

• PLACING OR PROJECTING SOME OBJECTS UPON THE LAND

Placing any material object on land in possession of another is trespass. Similarly, projecting an object onto the plaintiff’s land.

NOTE that the act causing the trespass must be direct or immediate and not indirect or consequential.

Thus, where the defendant throws any object onto the plaintiff’s land, it is trespass but to pile or gather rubbish near the plaintiff’s land may constitute nuisance and not tort.

In the case of ONASANYA V. EMMANUEL (1973) 4. CCHCJ 1477. The complaint of the plaintiff was that the defendant encroached about ten feet upon land in his possession when the defendant was laying foundation of a building. Further that the defendant had thrown water and refuse into his land and allowed excreta to escape onto his premises.

It was HELD that throwing water and refuse were direct acts and this amounted to Trespass while the escape of excreta was indirect invasion and therefore not trespass but nuisance.

Where a person wrongfully occupies a property in the possession of another or wrongfully places any object thereon, he will be liable for continuing trespass which is actionable from day to day, so long as the trespasser or the object remains on the land.

ESSENTIALS OF TRESPASS TO LAND

Trespass to land essentially involves some form of interference with land and like the other forms of trespass, IS ACCOUNTABLE PER SE, so there doesn’t need to be any actual damage to the land.

THE ELEMENTS OF THE TORT ARE

• The claim must involve land
• The land must be in the claimant’s possessions
• The defendant must interfere with the land.

LAND :- Land includes not only the soil itself, but things under it, any building that is fixed to the surface, and such air space above needed for the normal use of the enjoyment of land any structure on it. IN ANCHOR BREWHOUSE DEVELOPMENTS LTD V BERKELEY HOUSE ( DOCKLANDS DEVELOPMENTS ) LTD 1987 for example, the boom of Berkeley’s crane over sailed Anchor Brewhouse’s land and was help to constitute a trespass. It is not necessary to show damage to obtain an injunction for trespass. Anchor Brewhouse succeded in obtaining the injunction they were looking for as the court found no special circumstances to prevent the injunction.

POSSESSIONS:- The claimant need not own the land, but must be in possession on it . Possession to exclude others from the land and it must exist at the time the trespass is committed. For example If someone trespass on rented ,land doesn’t amount to possession for the purpose of the trespass i.e. a guest in a hotel.

INTERFERENCE :- The interference must be direct and physical, indirect interference may give rise to an action for negligence or nuisance but not for trespass.

For example Your next door neighbour prunes their roses and throws the clippings into your garder that may be trespass however , if they simply fail to purne them so that they overhang your garden. That may be nuisance , but not the trespass.

PROOF OF DAMAGE :- Trespass is actionable per se, damage need not be proved to sustain the action.

Example, A public road is to be used only for passage . A person using it for other purposes commits trespass, similarily starting in at other’s window affects the right of privacy. Thus amounts to trespass.

DEFENCES TO TRESPASS TO LAND

• LEAVE AND LICENSE:- This is a permission which makes lawful that which would otherwise be unlawful. Thus a person who enters the land by way of license will not be a trespasser. However if that person remains on the land after the license has expired or has been revoked or he exceeds the condition of the license, that person will become a trespasser.

It is a good defense to an action for trespass. A license only makes an act lawful which , without it, would be unlawful. A license may be either express, as in the case of a guest in the house, or employed, as in the case of customer entering in a shop.

To enter “In land law” a license is giving by X, the occupier of land, gives Y permission to perform an act which, in other circumstances, would be considered a trespass e.g., When X allows Y to reside X’s house as a lodger. A bare license is merely gratituous permission. A liecense may be coupled with an interest , an where X sells standing timber to Y on condition that Y is to serve the timber. In Case of STREET V. MOUNTFORD (1985) AC 809, A person or claimant who agrees to a certain action can’t complain or sue . in case of PETER V. PRINCE OF WALES THEATRE LTD., The defendant employed a sprinkler system to protect the building from fire. The claimant also occupied the building and complained when the stock was damaged by water from the sprinklers. It was held that the water supply benefited both the claimant and defendant and therefore there was no liability.

• ACT OF PUBLIC NECESSITY :- Entry on the land of another person without his constent is justifiable on the ground of public necessity. A person is not guilty of trespass if he goes on to another’s land to protect life or property during an emergency.for example : A passer by who sees someone pointing a gun at another person may cross on to the property and sub due the person with the gun someone at the scene of the traffic accident may go on to private property to pull a victim from one of the vehicles.

NECESSITY is a defense to show that it was necessary for the defendant to enter the claimants land . Trespass may not arise where there is actual / perceived danger in relation to which steps are taken. For example, in case of fire , one may get in to another person’s land to prevent further harm.

In case of RIGBY V CHIEF CONSTABLE OF NORTHAMPTONSHIRE , A young man broke into a gun shop and armed himself , the police fired a canister of CS Gas into the shop so as to smoke out the young man unfortunately , the shop caught fire and the shop keeper sued for damages. Court Held It was held that the police could on the defense of necessity because the boy was a cleat threat to the public and since the police had not contributed to the problem , they were not liable it was held that necessity was a defence provided that there was no negligence on the part of the defendant in contributing to the state of necessity, thus the action for trespass failed.

CASE OF PRIVATE NECESSITY. In COPE V SHARPE (1912) 1 KB 496. X’s land caught fire, his servants attempted to put out the fire. Z’s gatekeeper set fire to land between the fire and some of Z’s nesting pheasants. In an action for trespass, Z’s gatekeeper was held not liable as there was a real and imminent danger and he had done what is reasonably necessary.

An action taken as a matter of necessity to come to the aid of another person whose property or person is in imminent danger and it is not practicable to communicate with the assisted person. The action must be such as a reasonable person would take acting in the best interest of the assisted person.

NOTE THE NECESSITY IS A DEFENCE TO TRESPASS TO LAND, IT MAY NOT BE A DEFENCE TO ANOTHER TORT SUCH AS NEGLIGENCE.

• PRESCRIPTIONS :- In a action for trespass a defendant may plead that he was justified by reason of prescription as by showing a right of common or right of way over the land,
• SPECIAL PROPERTY AND EASEMENT :- A guarantee of easement may enter upon the servant ( sub ordinate) Tenement ( Apartment house ) In order to do necessary repairs and is a good defence to an action for trespass a land lord doesn’t have the right to enter a tenants apartments whenever the landlord wants however , the land lord usually has the right to enter make repairs the land lord must arrange a reasonable time for the repairs but the tenants constants to this couragement is either contained in the lease or is implied from the land lord assumptions as responsibility for making repairs inside the apartment .
• LACHES :- This can be referred to as Slackness or unreasonable delay in asserting and enforcing a right which is lost after the time limited by law to enforce it.

For a successful plea of laches, the plaintiff must have knowledge of all the facts, giving him a course of action. He must have delayed in instituting an action for so Long a period so that it can be inferred that he did not exercise his right.

Note that where there is no statutory prescription, period to be considered long will depend on the circumstances of each case. In the case of MANKO V. BONSO , it was held that a delay of twenty two years was too long. The plaintiffs knew about the voidable sale of a family land sold in 1885 and they got to know in 1914 and brought an action in 1936.

• ACQUIESCENCE :- This roughly indicates assent to or encouragement and permission on the part of the plaintiff. Acquiescence shares similar elements in common with laches but they are not similar. In the case of DUKE OF LEEDS V. EARL OF AMHERST (1846) 2 CHANCERY 117 AT 128. The true nature of acquiescence is given as follows:

“If a party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection, while the act is in progress, he cannot after wards complain. That is the proper sense of the word.”

ACQUIESCENCE SHARES THE TWO ELEMENTS OF LACHES BUT IT HAS FOUR ELEMENTS NAMELY:

1. A mistake in the part of the defendant that he is the owner.
2. The expenditure of money by the defendant on the land to the knowledge of the plaintiff.
3. The exercise of acts of ownership by the defendant to the knowledge of the plaintiff.
4. Conducts of the plaintiff showing the abandonment of his rights.

• JUSTIFICATION (BY LAW) : When justification is provided by law, acts which would otherwise be trespass are not trespass. For example, powers of the police under the Police Act or Evidence Act to enter into the premises to search them.
• JUS TERTII: This is a claim by the trespasser that he has the authority of a third party who has a better title to enter the land.

REMEDIES TO TRESPASS TO LAND

• RE-ENTRY

If a person’s possession had been disturbed by a trespasser, he has a right to use reasonable force to get a trespass vacated. A person, who is thus entitled to the immediate possession, uses reasonable force and regains the possession himself, cannot be sued for trespass. Ousting a trespass by a person having a lawful right to do so is no wrong. Thus, in HEMMINGS V. STOKE POGES GOLF CLUB, the plaintiff had been in the employment of the defendants. On the termination of the service, the plaintiff was given proper notice to quit the house. On his refusal to do so, the defendants, by the use of reasonable force, themselves entered those premises and removed the plaintiff and his furniture out of it. The defendants were held not liable.

• ACTION FOR EJECTMENT

SECTION 6, SPECIFIC RELIEF ACT, 1963 gives a speedy remedy to a person who has been dispossessed of immovable property otherwise than in due course of law.

“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…”

This is a speedy remedy where the person, who had been dispossessed of certain immovable property, without due course of law, can recover back the property without establishing any title.

Even-a person claiming a superior title has no right to evict any other person without due process of law and if he dispossesses another by taking the law into his own hands, the persons dispossessed will be restored back the possession under the above-stated provision.

This section gives relief only to a person in lawful possession. A mere trespasser cannot have recourse to this provision.

• ACTION FOR MESNE PROFITS- S.2(12) CPC

Apart from the right of recovery of land by getting the trespasser ejected, a person who was wrongfully dispossessed of his land may also claim compensation for the loss which he has suffered during the period of dispossession. Mesne profits refer to the profitts taken by the defendant during the period of his occupancy.

An action to recover such compensation is known as an action for mesne profits. If the plaintiff likes, he may sue in ejectment and mesne profits in the same action. His claim is not limited to the benefit received by the defendant from that land during that period.

• DISTRESS DAMAGE FEASANT/SEIZURE/DETENTION

The right of distress damage feasant authorizes a person in possession of land to seize the trespassing cattle or other chattels and he can detain them until compensation has been paid to him for the damage done. The idea is to force the owner of the chattel to pay compensation and after the compensation has been paid, that chattel is to be returned.

Any chattel, animate or inanimate, can be detained. The thing seized, therefore, may be a cricket ball, a football, a cow, a horse or even a railway engine.

In BODEN V. ROSCOE, the occupier of land was held entitled to detain a pony, which after trespassing had kicked his filly until compensation for the damage done was paid.

The right is available only when the object in question is unlawfully there on certain land. If therefore, a bull which is being conducted carefully through a street enters a shop through an open door, there is no trespass and there cannot be a right of seizure in respect of the animal.

There is no right to follow the things after it has gone out of those premises or to recover them after the owner has taken them away. It is also necessary that the thing seized must be the very thing which had trespassed and caused the damage. Thus, if the damage has been done by one animal, no other animal, even from the same herd, can be seized for the exercise of the right.

LIMITATION

Plaintiff while filling the suit has to comply with the Limitation period as per the LIMITATION ACT 1963, the statutory period of limitation that is allowed for possession of immovable property or any interest is 12 YEARS in the case of private property and 30 YEARS for public property, from the date the trespasser occupies the property.

TRESPASS TO ANIMALS

Animals especially domestic animals are treated as movable property or livestock in legal and accounting language. If the domestic animal owned by a person trespasses a land and does damage to the property of the owner. Then he has a right to use reasonable force to deter them from his property. He also has a right to lien over those animals until the damage is paid by the owner. 

TRESPASS TO MOVABLE PROPERTY

Section 2(9) of the Registration Act 1908 defines movable property as: 

‘Movable property’ includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property. When a person with a malicious intention causes any harm to the movable property of others this is termed as the commitment of trespass to movable property. It means the unjustified intrusion of some else’s property without his consent.

example Akasha’s friend Binod enters Akasha’s van and broke a window without her permission. Here Binod is liable for the act of trespass to movable property.