Tuesday, July 16, 2024





Explain the tort of trespass in detail.

In the context of Tort Law, ‘trespass’ is a legal term used to describe a cause of action in which an individual seeks legal redress for the unlawful interference with their right to own or use land, property or personal space in relation to another person. A civil wrong or a tort involves the unlawful entry or occupation of another person’s land or physical space..
Trespass in tort law is broadly categorised into two types:

  1. Trespass to the person: Assault, Battery, False Imprisonment, and Intentional infliction of Emotional Distress are just a few of the crimes associated with trespassing on the person’s property.
  2. Trespass to property: What is trespassing? It’s when a person unlawfully enters or stays on another person’s land without permission or due process of law. This includes trespassing on someone else’s land, trespassing on their property, trespassing on a building, trespassing on private property, placing property on private property, or causing significant disturbance to the landowner’s property.

When someone commits trespassing in any of these ways, the injured party can take legal action. These actions may include injunctions to stop future trespassing, damages for the harm suffered, and in some cases punitive damages.

Trespass can be considered both a civil and a criminal offense because it can result in injury, that is, a violation of legal rights, as well as substantial damage to person and property if a physical attack occurs.

What is Trespass?
Trespass is an action that goes beyond what is allowed by the law. Trespass is an act of unlawful interference with the person or property of the other person. The word ‘intention’ here means committing the unlawful act voluntarily. A Trespass allegation is made when the interference is with the body and private property of the person or of the third person. It is important to note that intention is an essential element of trespass. Unlawful conduct is instigated by the mala fide and ulterior motive to harass another person.

Trespass to person
Assault, Battery and False Imprisonment, assault is an act of unlawful interference with the body of another person with malicious intent. It can be committed either by inflicting bodily injury or by threatening to use force, in the case of trespass to person injury may or may not be present, but legal remedies will still be provided.

Assault – Wrongful apprehension of fear in the mind of other person causing him to suffer harm is known as assault. No physical harm is needed to be established to prove assault.

Essentials of assault include:
a) Intent
b) Apparent ability to carry out the purpose
c) Apprehension
d) Knowledge of threat

Illustration: – X was arguing with Y, while arguing X showed a hand movement which would have been turned into a slap, herein the mere movement and showing preparation to slap someone is known as 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.

Battery is defined as the use of force that inflicts physical injury on a person. The force used must be intentional and without legal justification. Herein the actual physical contact with other person causes harm or injury.

Essentials of battery include:
a) Direct or indirect physical contact without lawful justification
b) Use of force
c) It must be voluntary

Illustration: – if we take the above-mentioned example is carry forwarded that, X and Y were in a heated conversion, X showed hand movement which would have turned into a slap but now herein that hand movement of X turned into a slap, as soon as the hand of X touched Y it became the Battery.\

In other words, unintentional or lawful use of force cannot be termed as battery. 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.

Defences for trespass to person

  1. Valid Arrest
    False imprisonment does not mean that a person is unlawfully detained if there are reasonable grounds to believe that they have committed a crime or are involved in a crime. A person may also be unlawfully detained for the sole purpose of apprehending a citizen.
  2. 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.
  3. Probable Cause In some cases, imprisonment is based on allegations that the defendant conspired to commit a crime. In these cases, imprisonment is not a form of false imprisonment. If a reasonable prudent person had access to the information that the police officers at the time had, that reasonable prudent person would have a reasonable belief that a crime was committed. That reasonable belief would be sufficient to justify a search or arrest.
  4. Self Defence A reasonable person may use reasonable force in self-defense or to protect another person or property from an unlawful person or entity. However, the use of reasonable force must be reasonable and proportional. Cresswell v Sirl The defendant’s son shot the plaintiff’s dog after the dog attacked pigs and sheep in the defendant’s property. The defendant was sued by the plaintiff. The Court of Appeal ruled that there was no alternative to save the animals other than to shoot the dog. Therefore, the defendant and his son were not liable for the shooting of the dog.
  5. Contributory negligence When negligence on the part of the plaintiff is involved in the conduct, then the defendant’s culpability can be reduced to a lesser degree and a compromise can be reached or liability can be split.

Remedies available for trespass to person

  1. 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.
  2. 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.
  3. 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 against property
Wrongful Trespass to land, also known as trespass to goods, is when a person unlawfully interferes with another person’s property or goods without a valid legal basis. The interference must be direct and physical. Trespass to property, on the other hand, is viewed as an act of possession rather than an act of ownership of the property or goods. A person who is in possession of goods or property can file a suit for trespass if the lawful owner of the goods or property cannot provide a valid legal basis for such an act..

In the case of Madhav Vithal Kudwa v. Madhavdas Vallabhdas, the tenant lived on the first floor of a multi-storeyed building. The plaintiff, being the landlord, alleged that the act of defendant parking his car in the compound of his building amounted to trespass. He asked for injunction from the court to restrain defendant from such parking. However, the court held that parking of vehicle cannot amount to trespass as it was a multi-storeyed building.

In the case of Basely v. Clarkson, the defendant cut the grass on his land and mistakenly he crossed the boundary and did same on the land of the neighbour. In the instant case the defendant’s plea of mistake in claiming trespass to land was rejected. It is because his act was not unintentional though he committed a mistake regarding the presence of the boundary. However, it would not amount to trespass if the entry proved to be involuntary.

In the case of Smith v. Stone, the person was thrown into the land of the plaintiff. Since his entry was not intentional therefore his act did not amount to trespass.

It is a presumption in holding the possession rights of a land that the person who possesses a piece of land possesses the earth below it and the sky above it. Thus, any entry beneath the surface at any depth would be actionable trespass. Trespass can be committed through air, land, animals etc.

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. The action of trespass to land penalizing direct interference with other people’s land.”

In Bird v. Jones, The claimant was trying to go through the enclosure, but the defendant put two police officers to block the claimant’s path and prevent him from entering further into the field. He was told that he could go back but not forward. After half an hour the Claimant tried to push past whereupon he committed an assault on the Defendant and was arrested.

The court said that it is false imprisonment for a person to be forced to stay in a place just as much as locking them in a room. There need not be any touching either. However, it cannot be a false imprisonment to avert a person from going forward but allowing them to return the way they came, even if it is unlawful to stop them. The person no doubt suffers a wrong but not false imprisonment, possibly assault or battery if he is endangered or touched as he tries to get past. So here it was held that there was no wrongful restraint or confinement.

In Read v. Coker, D and his men surrounded P, rolling up their sleeves, and threatened to break P’s neck if he did not leave. P was a rent collector who entered D’s workshop and refused to go until the rent was paid. It was held that this was an assault: the condition attached to the threat was not enough to nullify it.

In Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors, Statutory Authority: Search and seizure on the premises of appellant do not constitute an act of trespass. It can’t be said that any procedure carried out to find the truth on the property will be construed to be an act of trespass if the act is carried out with sufficient legal backing.

In Amit Kapoor Vs Ramesh Chander and Anr, Merely because there was a civil transaction between the parties, it would not by itself alter the status of the allegations constituting the criminal offence.

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