Trespass to Land A trespass to land is any interference with a person's rights in his land without lawful justification. An unlawful entry into some other’s property is trespass, even if no harm is done to the property.
The act of the trespasser may include the entering of the property without auth author oris isat atio ion, n, occu occup pying ying othe otherr pers person on’s ’s land, and, or plac placiing obj objects ects and and obstructions on the land. An act of trespass must be direct and intentional and without consent for an action to succeed.
Trespass Trespass is actionable actionable per se and hence no damage damage needs to be proven. proven. English jurists have described trespass as, “every invasion of private property, pr operty, be it ever so minute. !t can thus be deduced that in order to constitute a tort of trespass, the use of force, unlawful unlawful intention intention or proof of actual damage is not necessary. necessary. Trespass is possible not only on the surface of the land but on underground or subsoil even.
MISTAKEN OR NEGLIGENT ENTRY
Trespass to land is an intentional tort. "owever, intention for the act is re#uired, not an intention intention to trespass. $onse#uently, $onse#uently, deliberate deliberate entry is re#uired re#uired and lac% of %nowledge as to trespass will not be a defence.
Involuntary entry (Smith v Stone (!"#$ Sty !%$
An involuntary trespass is not actionable& mith v tone ()*+- ty *, where / was carried onto the land of 0 by force and violence of others1 there was trespass by the people who carried / onto the land, and not by /.
Ne&li&ent entry (Lea&ue a&ainst 'ruel Sports v Sott$
A negligent entry is possible and was considered in 2eague against $ruel ports v cott. The 0s owned 34 unfenced unfenced areas of land. taghounds taghounds used to enter the land in pursuit of deer. The 0s sued the joint 5asters of the "ounds for damages and sought an injunction against further trespasses. 0ar% 6 issued an injunction in respect of one area restraining the defendants themselves, their servants or agents, or mounted followers, from causing or permitting hounds to enter or cross the property. /amages for si7 trespasses were awarded. The judge said& 89here a master of staghounds ta%es out a pac% of hounds and deliberately sets them in pursuit of a stag or hind %nowing that there is a real ris% that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by his failure to e7ercise proper control over them he causes them to enter such land.8
Remedies )or Trespass •
The aggrieved person has a right to use force to vacate the trespasser, provided such force is reasonable.
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!f any person is dispossessed of his property, without his consent, he may recover such possession by filing a suit for ejectment.
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The aggrieved aggrieved person may also claim damages damages for the loss, which he has suffered during the period of dispossession. uch claim for compensation is %nown as an action action for mesne profits. profits. The principle relief relief in such suits should include both prayer for ejectment and mesne profits or damages since these claims arise out of the same cause of action of dispossession
"owever, if the trespasser becomes a “settled possessor, even the actual owner cannot evict him by the use of force. The upreme $ourt in :ama ;owda v. 5.
, *>, page page * * has has set set out out the cond condiition tionss for for determining a settled possessor, which can be enumerated as follows& ? •
The The tres trespa passe sserr must must be in actu actual al poss posses essi sion on of the the prope propert rty y over over a sufficiently long period
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The possession must be to the %nowledge of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. possidendi. The nature of the possession of the trespasser would, would, however, be a matter matter to be decided decided on facts and circumstances circumstances of each case.
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The process of dispossession dispossession of the true owner by the trespasser trespasser must be complete and final and must be ac#uiesced by the owner sleeping over his rights.
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!n cases of cultural lands if any crop had been grown by the trespasser then even the true owner has no right to destroy the crop grown by the trespasser and ta%e forcible possession. The above principle was also laid down in 0uran ingh v. tate of 0unjab, ()>- + $$ )@, page 3
*E+EN'ES Liene
A lice licenc ncee is a perm permis issi sion on to ente enterr land land and and may be e7pr e7pres ess, s, impl implie ied d or contractual. A dictionary definition is as follows& 8!n land law, a licence is given by to B when , the occupier of land, gives B permission to perform an act which, in other circumstances, would be
considered a trespass, e.g., where allows B to reside in 's house as a lodger. A bare licence licence is merely merely gratuitous permission permission.. A licence may be coupled coupled with an interest, as where sells standing timber to B on condition that B is to sever the timber1 in this case the sale implies the grant of a licence to B to enter 's land. !f a licensee licensee e7ceeds their their licence, or remains remains on the land after it has e7pired or been revo%ed, the licensee becomes a trespasser (,ood v Lead-itter (."%$ / M0, ./.1 "illen v !$! (Al%ali- 2td C)>4*D A$ *-. uch a person is allowed a
reasonable time in which to leave (:obson v "allett C)>*D 3 F >4>1 5inister of "ealth v Fellotti C)>++D GF 3>@-. There is also the defence of estoppel by ac#uiescence ac#uiescence,, that is, consent consent which is e7pressed or implied from conduct, eg, inactivity or silence (6ones v tones C)>>>D ) 92: )4> H a mere delay in complaining is not ac#uiescence-. Ri&hts o) entry
A person may e7ercise a lawful right of entry onto land, for e7ample& •
A private right of way granted to the defendant1
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A public right of way1
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A right given by the common law, such as the right to abate a nuisance1 and
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A right of access given by statute, such as Easement Act.
REME*IES
:emedies include&
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/amages (which will be nominal if there is only slight harm to land-. The claimant is entitled to full reparation for his loss incurred. ;enerally depreciation in the selling value is an ade#uate measure for destruction or damage damage to the subject subject matter’s in course of the tort of trespass. !f there is an adverse effect onto business due to trespass trespass the claimant claimant is entitled to recover the profits which were lost. This is called special damages.
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An injunction to prevent further acts of trespass (at the discretion of the court-. These are present for in the case of trespasses to restrain the trespasser. As it was seen in the case of Ielson <. Iicholson where the 0laintiff 0laintiff had resolved a dispute dispute over the boundary with the defendant. !n resolving this dispute, it became apparent that the defendant had planted a tree on the plaintiff’s plaintiff’s land. The plaintiff plaintiff filed for a mandatory mandatory injunction injunction against / to get the bush removed.
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An action for the recovery of land if a person has been deprived of lawful possession of the land (formerly %nown as ejectment-.
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An action for mesne profits, to recover damages for loss during a period of dispossession.
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:ight of entry, ie the right of resuming possession of land by entering.
Note: A lease may give the lessor the right to re?enter on a breach of covenant by the lessee but the right is not enforceable unless and until notice is served ser ved on the lessee. Note: !t is unla unlawf wful ul to enfo enforc rcee a righ rightt of re?e re?ent ntry ry,, e7ce e7cept pt thro throug ugh h cour courtt proceedings, while the occupier is lawfully lawfully residing in the premises.
Supple Supp leme ment nt th thee issu issues es and and ase ases1 s1 2hih hih 2e have have disussed in the lass1 at appropriate plaes
