Trespass to Land

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Legal Jumble

10 min readDec 22, 2019

Introduction

We are always in a battle for establishing our identity. Although for different purposes, all humans have one common objective, to establish or carve out a separate identity for themselves. This makes humans selfish in character and our deeds are always oriented towards pursuing those narrow selfish drives. Rousseau’s famous quote, “Man is born free but found himself in chains, everywhere,” is a testament to the fact that man is always bound by the chains of self-interest and desires.

In pursuit of carving out an identity, we start creating distinctions within ourselves. For example, an individual might construct a wall around a piece of land and claim that piece of land as his/her belonging and thus create an identity for him/her self that is attached with that piece of land. As a consequence of such acts, inequalities surface in society.

With all the artificial divisions and inequalities that are created in society, property and rights also get distributed by society amongst all its inhabitants. Land, houses, buildings and other property are given ownership. When such development has taken place in society, individuals seek protection for their property, land and other items. This gives rise to laws and rights that safeguard property and personal space from theft and trespass.

Image Source — iPleaders Blog ( https://blog.ipleaders.in/encroachment-upon-property/)

The principle of trespass arises from such a situation. Thus, the origin of the laws and jurisdictions related to trespass can be traced along with human development and development of society from solitary living to group life, or civilizations. The action of trespass was developed to offer a remedy for an injury to a person or to property.

Trespass has become a diverse area of tort law. There are several classifications of trespass, such as trespass to the person, trespass to chattels and trespass to land. Trespass to person is the intentional interference with a person’s body.[1] It involves threats, assault, battery. Trespass to chattel is the intentional interference with a person’s lawful property or goods, without consent of the owner.[2] The third sort, i.e., trespass to land, is the unlawful intrusion by an individual on another’s land voluntarily.

Trespass to Land

Trespass can be defined as the act of knowingly, or intentionally, entering or interfering with another person’s body or lawfully owned goods and land, without the consent of the rightful owner.

The Merriam Webster Dictionary defines trespass as — “an unlawful act committed on the person, property, or rights of another,” or, “an unwarranted infringement.”[3] In ‘The Law of Torts’ by Ratanlal and Dhirajlal, trespass is defined as any transgression of offence against the law of nature, of the society, or of the country, whether relating to a man’s person or to his property.[4]

In terms of trespass to land, a trespasser is one who enters or interferes upon land in the lawful possession of a person without a privilege to do so that can be created by the possessor’s consent.[5]

The tort of trespass has originated from the desire of individuals to create an identity for themselves. All individuals want to protect their body and property from misappropriation and exploitation. The tort of trespass is intended to protect the interest of the owner who is in exclusive possession of a piece of land. Anyone who has such a possession of land can bring action for trespass as a plaintiff.

The maxim — “cui us est solum, eius est usque ad coelum et ad infernos” — meaning that whoever owns a piece of land, owns it all the way to his/her grave, applies here, although limited by practical constraints.

Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done. Trespass to land, usually a civil offence, is an offence under the Indian Penal Code as well (section 441) if and when requisite intent is present.

Types of Trespass to Land — I will now discuss the various elements required to constitute the tort of trespass to land. There is actually no requirement of force, actual damage, or even unlawful intention to constitute the tort of trespass. Any invasion, as slight as possible, is considered as a trespass in the eyes of the law.[6]

There are several types of trespass to land, such as trespass by airspace, trespass to ground beneath the surface, trespass by entering the land (wrongful entry), continuing trespass.

a) Trespass by Wrongful Entry: This occurs when a person walks onto someone else’s land without due permission of the rightful owner, or, when a person refuses to vacate the land when the permission to enter the land is withdrawn by the owner. Throwing an object on the land is also an example of trespass by wrongful entry. There has to be contact with another person’s property for this form of trespass, however slight it may be.[7]

Examples of this form of trespass are encroachment on the land and walking through it without permission. When the permission to entry granted by the lawful possessor of land is abused, it also qualifies as trespass. For instance, in the case of Bond v Kelly (1873), Kelly was found to have committed trespass because he had acted outside his course of employment. He had been commissioned to deforest a section of land on Bond’s property, therefore Kelly had a lawful license to enter Bond’s property. However, Kelly cut down more trees for lumber than ordered, and thus was found guilty of trespass, despite lawfully entering the property.[8]

b) Trespass to the Airspace: Legal maxim ‘quare clausum fregit’ defines land as, “land includes not only the surface and any buildings on it but also the airspace and subsoil, in so far as these are vested on the plaintiff.[9] Therefore, intrusion into airspace at a relatively low height constitutes the tort of trespass to land.

It has, however, been settled that the rights of landowners in the airspace extend only up to such a height as is necessary for reasonable use and enjoyment of land and the structures on it. The widespread use of airspace travelling and transportation brought before the legal world, a new dynamic of airspace laws. The question that troubled the courts was about who owns and controls the airspace over the land. Is it the landowner or is airspace a public property?

The leading case in this matter is Smith v. New England Aircraft Co., in which the courts held that flights up to and below an altitude of 100 feet of a property constituted trespass to land. Low flying airplanes created a nuisance and disturbed the owner of land from enjoying his/her use of the land and interferes substantially.[10]

The issue of the height at which an intrusion would be considered as trespass to land was discussed in the case of Baron Bernstein of Leigh v Skyviews & General Pvt. Ltd. and it was reiterated that the owner has rights and ownership of the airship only to the extent where he/she can reasonably enjoy ordinary use of the land.[11]

In Didow v. Alberta Power, the court, once again, explored the heights to which the owner of the land has rights to the airspace. In this case, Alberta Power’s transmission lines protruded six feet above the Didow’s farm. The Didow’s objected that the lines would interfere in their use of tall machineries and spraying equipments. The Alberta Court of Appeal agreed, relying on the Latin maxim, “cujus est solum, ejus est usque ad coelum et ad inferos” (to whomsoever the soil belongs, he owns also to the sky and to the depths).[12]

c) Continuing Trespass: A repeated or ongoing (not one-time) trespass (unlawful entry or possession), especially onto real property. For example, building a road or structure that extends onto a neighbour’s property, or piling up rocks or garbage there, would be a continuing trespass.[13]

In simpler words, if any act that constitutes the tort of trespass continues to be done, without the trespasser trying to avoid it, is said to be continuing trespass. It can arise in a situation where a trespasser to remain on the owner’s land, or fails to remove any matter from the land that is causing trespass.[14] A multiple number of actions can be brought in against the trespasser where there is a situation of continuing trespass. As long as the trespasser continues the trespass to land, the owner has a fresh cause of action and can bring multiple actions day-to-day until the trespasser leaves, or is evicted.

The best example for this from of trespass, is the case of Holmes v. Wilson, from 1839, the defendants erected buttresses to support a sinking road, necessitating trespass onto the claimant’s land. Holmes sued for damages and recovered them successfully, however, when the defendants failed to remove the buttresses, he sued them again.[15]

Defences

In cases of trespass, there are several sorts of defences available to the trespasser, however, mistake or ignorance is no defence to trespass. It cannot be an excuse of trespass. For example, in Basely v Clarkson[16] the defendant cut grass from a patch of land that he believed was owned by him but actually belonged to his neighbour. Here, the court held that whether he knew the facts or not was irrelevant as his act was voluntary and caused damage to Basely, the claimant. Mistake of fact was not accepted as a ground for non-liability in trespass.

1) The first defence available is of license. The defence of license implies that when a person has obtained permission from the owner to enter the property, then the person cannot be held liable for trespass. However, the defence of license is valid only till the terms of the license are not exceeded by the person entering the property. If he/she exceeds or misuses the license, then they can be held liable for trespass.

License is express or implied permission, given by the possessor of the land, to be on that land. These licenses are irrevocable unless there is a flaw in the agreement or it is given in a contract. Once revoked, a license-holder becomes a trespasser if he/she stays on the land.[17]

2) The second defence that can be used is of necessity. Necessity can be used to claim that it was necessary for the person to unlawfully enter a piece of land that did not belong to him/her. In such a case, the liability of trespass to land may not arise.

Necessity is a privilege against trespass. For example, it can be held that the trespasser entered someone else’s land to prevent a public disaster. Take for instance, a case of fire where one may have to get into another’s property to prevent further damage. The action is not liable if it is for the benefit of the owner or the public at large.

3) The next defence is the doctrine of estoppel. It is a very essential component of defences to actions of trespass. Estoppel is a legal principle that restricts a person from making allegations or denying a certain fact owing to their previous conduct, allegation or denial.[18]

Estoppel arises when a person who had a duty to speak or act, intentionally or negligently made another through his/her action or silence to believe in the existence of a fact that does not exist, and another acted by relying on such an act or omission.[19]

4) Another valid defence for trespass to land is Justification by Law. Any act, which would otherwise be considered as tort under trespass to land, is not trespass when so provided under the law. For example, an officer of law, performing his/her duty in an adequate and reasonable manner, i.e. not in abuse of the law, without causing any harm is privileged to commit trespass, to arrest or summon a person.

In the case of Elias v Pasmore [1934], two policemen lawfully entered a premise to arrest a person, and while there, they took custody of many documents. Some were taken lawfully and others were taken wrongfully. Here, the court found that the two policemen were not in trespass of land, as they entered with a valid search warrant. However, there was a trespass to goods when they collected the documents. But they cannot be held liable for trespass to land on the basis that there was unjustifiable seizure of goods.

Remedies

There are a number of remedies that can availed by the sufferer against the tortfeasor in the court of law. The tort law has provisions for several remedies, such as injunction, expulsion, damages and self-help.

1) Injunction — An injunction can be issued at the discretion of the court to prevent any further trespass. An injunction is a writ granted by a court of equity whereby one is required to do or to refrain from doing a specified act.[20] The court can order the trespasser to move from the owner’s land, as a remedy for prevention of further trespass. If the trespasser continues to remain on the land, then it will constitute a continuous trespass.

2) Expulsion — The lawful owner of a land has the right to evict a trespasser from his/her land. If the trespasser refuses to leave or vacate a premise, then the owner can use force to remove the trespasser from the property. The force used cannot be more than what is reasonably necessary to remove the trespasser.

There is an interesting catch to this remedy. If the force used by the lawful owner to remove a trespasser exceeds the force reasonably required, then the owner would in turn be committing trespass against the actual trespasser, trespass to person.[21]

3) Damages — Damages awarded for a trivial or slight damage will be negligible or nominal. When substantial amount of damage is done, then the damages awarded are in tune with the diminution of the value of land. Such an amount is decided by the court to compensate the owner of the land reasonably. In some cases, the cost of rebuilding or repairing the loss is decided as the correct measure of the damages awarded.