TRESPASS TO LAND

Under the English common law, there are 3 kinds of trespass:-

 1.   Trespass on land;

 2. Trespass on person;

 3. Trespass on goods.

·   Trespass on land is an unjustifiable interference with the possession of it:-

Possession is an important concept in the law. Possession is the evidence of ownership; the possessor of a thing is presumed to be the owner and the burden of proof is cast on him who wants to establish his title to it. Even the possession of a thief will be protected as against the third parties, though not against the true owner of the article. A man can be charged of the offence of theft if it is found that he has removed the article from the possession of another. Interference with the possession of the land sufficient to amount to the trespass may occur in many ways. 

The most common example is the unauthorised walking upon in or going into the building upon it, but it is equally a trespass to throw things upon the other man’s land or to allow the cattle to go into it from the one’s own land or placing one’s ladder against another’s wall.

·       Possession:-

According to Salmond, 

'the possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involves two elements, one mental or subjective and the other physical or objective.'

a. The mental or subjective element:-

This element consists the intention of the possessor with respect to the thing concerned. This element is called the animus ; and

b.The physical or objective element:-

This element consists the external facts in which this intention realises, embodies or fulfilled itself. This element is called the corpus.

Mere physical possession of a thing will not confer the possession on the person who holds it. Possession is of two types or kinds:

a. Possession in fact;

b.Possession in law.

The former, possession in fact is also called the de facto possession, custody or detention; while the latter, possession in law is also called legal or constructive possession. 

Possession in fact may be defined as any power to use and exclude the others, however small, if accompanied by the animus possidendi, provided that no one else has the animus possidendi and an equal or greater power. For possession in law there must be a manifest intent not merely to exclude the world at large from interfering with the thing in question, but to do so on one’s own account and in one’s own name.

Eg:  A servant’s possession is the possession in fact while that of the master is the possession in law.

There is a difference between the right to possess and right of possession. A landlord who has let the land on the lease to a tenant for a period of 2 years has got only the right to possess the land at the expiry of the period of the lease and during this period the lessee has only got the right of possession.

  · Nature of trespass:-

Any unjustified intrusion by one person upon the land in the possession of the other constitutes trespass. It is also a trespass to place anything on or in the land in the possession of another as by the driving a nail into his wall or placing rubbish against his wall. In trespass, the injury should always be direct. If it is indirect and consequential, it may be nuisance but not trespass.

Eg: If I plant a tree on your land, that is trespass. But if the roots or branches of a tree on my land projects into or over your land, that is a nuisance.

With regard to the right of a person over the airspace above his soil, the maxim applied is whose is the soil his is also that which is above it. It does not mean any ownership over the infinite space, but only means that if one owns a portion of the earth’s surface, one also owns anything below or above that portion which is capable of being reduced into private ownership.

  · Defences to Trespass:-

a. License is a ground of justification:-

A license is that consent which, without passing any interest in the property to which it relates, merely prevents the acts for which the consent is given from being wrongful. Licences are the mere rights in personam which are available only as against the particular licensers. A license can be revoked at any moment by the notice to the licensee, provided that he be given a reasonable time to remove himself and all his goods placed on the land in the pursuance of the license.

b.Executed License:-

A license is said to be an executed license when something is done by the licensee in pursuance of the license granted to him.

Eg: ‘A’ allowed ‘B’ to make certain inscription on ‘A’s wall. ‘A’ can at any moment cancel that permission but he cannot force ‘B’ to remove the inscription already made on the wall.

c. Justification by law, private defence, necessity, parental authority, etc.:-

These can also be used as the defence against trespass. One can trespass into the other’s land if he has any lawful justification for such trespass. One can also trespass into the other’s land as a measure of private defence. In cases of necessity too one can trespass into the other’s land and so on.

  · Trespass ab initio:-

If one who is entitled by a law to do an act abuses his authority to do it he is said to be a trespasser ab initio; his act is reckoned as an unlawful act from the very beginning, however, innocent his conduct may have been up to the moment of his abuse.

Eg: Thus the law allows anyone to enter an inn for the purpose of refreshment, and a constable have the right to search a person who is suspected of having stolen the goods; but if the guest steals the property at the inn or if the constable uses unnecessary violence in his search, the act is deemed unlawful as it had never been authorised at all in the law.

There is a qualification to this rule of trespass ab initio. In order to apply this principle of trespass ab initio, the abuse must have been a positive one and not a mere omission.

  · Remedies for Trespass:-

a. Right of Re entry:-

The person entitled to the possession of the land can enter or re enter the premises in a peaceable manner otherwise he commits a crime which will be punishable by the imprisonment.

Major case law include:-

Hemming vs. Stoke Poges Golf Club: In this case, the plaintiff, a tenant of a cottage owned by the defendants, refused to quit it after notice and been duly given to him. The defendants there up on entered the cottage and then removed the plaintiff and his furniture with no more force than was necessary. He sued them for the assault, battery and trespass but the defendants were held not liable.  

b.Action for recovery of land or Ejectment:-

The possession is an important feature of the action and what the plaintiff should seek to establish in his immediate right to possess, which he has just lost prior to the action. Hence, the plaintiff cannot sue unless he is out of the possession.

c. Jus Tertii ( The Title of the 3^rd person):-

Although in an ordinary action under the trespass, jus tertii is not a defence, under the action of the Ejectment it is probably a good defence as the plaintiff there must prove his title. If the evidence shows that some 3^rd person is entitled to the land, the plaintiff ought not to succeed, in other words, the defendant ought to be allowed to pleas jus tertii.

Major case law include:-

Asher vs. Whitlock:-  In this case, it was held that a lessee cannot dispute the title of his lessor. If ‘B’ has acquired the possession of a land from ‘A’, ‘B’ cannot in an action of ejectment by ‘A’, plead that ‘A’ has no title to the property and it vests in some third person.

   

d.Action for Mesne profits:-

In the remedy of the action for Mesne profits, the plaintiff can claim by the way of the damages that the mesne profit of the property for the period he was out of possession. Mesne profit refers to the profits taken by the defendant during the period of his occupancy or possession. When the plaintiff’s title to the land has been extinguished, by the adverse possession, his claim for the mesne profits also extinguishes.

e. Right of privacy and confidentiality:-

This is another remedy for trespass. Under the trespass to land, the right of privacy and confidentiality is provided to every individual as a remedy. An obligation of confidence can arise out of particular relationships apart from the contract, and breach of confidentiality can be prevented by restraining by injunction publication of confidential information to the detriment of the plaintiff. Adverse possession for 12 years extinguishes the title of the owner. When there are successive squatters, the second squatter may acquire the title by the adverse possession.  

Major Case laws includes:-

R Rajagopal vs. State of Tamil Nadu: - In this case, the Supreme Court held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens under Article 21 of the Constitution of India. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own life, his family, marriage, procreation, motherhood, child bearing and education.

Abirchand Gulabchand Jain vs. Malik RamnarainTailor: - In this case, it was held that the right of privacy cannot be acquired as an easement. It can be acquired by virtue of the local custom. The customary right of privacy must be pleaded and proved. In the absence of such a right a person cannot restrain his neighbour from opening the new windows, but he can block the windows by raising his own wall.

f. Distraint damage feasant:-

A remedy is available to distrain to recover the compensation for the actual damage suffered. A car parked unauthorisedly which has caused no actual damage cannot be distrained by the land owner. This is not so when a driver parks a vehicle in an area displaying signs that unauthorised vehicles would be immobilised and a fee would be charged for their release.   The land owner will be entitled to recover the fee from the driver before releasing the vehicle on the ground that the driver had impliedly consented to that risk.  

g. Pollution of water and environment:-

The Environment Protection Act, 1986 by Section 2 (a) widely defines the environment to include water, air, and land. Section 3 and 5 confer wide powers on the Central Govt to protect and improve the environment and to issue necessary directions therefore to any person, officer or authority.

Major case law include:-

M C Mehta vs. Union of India: - In this case, the Supreme Court held that under the Article 32 of the Constitution of India, it restrains the tanneries of Kanpur from discharging the effluents into the river Ganga without setting up a primary treatment plant.

Indian Council for Enviro Legal Action vs. Union of India:-

In this case, the Supreme Court issued the directions to the Central Govt to the exercise of its powers under Sections 3 and 5 of the Environment (Protection) Act, 1986 to take remedial measures to restore the soil, water sources and the environment in general of the affected area to its original condition and to recover the cost of the same from the polluting chemical industries.  The villages were held to be entitled to sue for the damages in the civil court. The Court held that, the State is the trustee of all the natural resources which are by the nature meant for public use and enjoyment. The public at large is the beneficiary of the sea shore, running waters, air, forests and the ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources are meant for the public use and that cannot be converted into the private ownership.