Torts affecting Immovable Property

In one minute

Land can be harmed in three main ways. A person can enter it without right (trespass). A person can interfere with its use and enjoyment from outside (nuisance). A dangerous thing can escape from a neighbour's land (the rule in Rylands v. Fletcher).

Trespass is actionable without proof of damage. Nuisance needs substantial interference. In exams, this topic is asked as a comparison of trespass and nuisance and as a problem on a neighbour dispute.

Legal provision

• Specific Relief Act, 1963, section 5: a person entitled to the possession of specific immovable property may recover it by a suit.
• Section 6: a person dispossessed without his consent and not by due process of law can recover possession by a suit filed within six months, without proving title.
• Sections 36 to 42: temporary and perpetual injunctions. Section 38 allows a perpetual injunction to prevent breach of an obligation in favour of the claimant.
• Indian Easements Act, 1882: easements, such as a right of way or light, and their acquisition by long enjoyment.
• Bharatiya Nyaya Sanhita, 2023: criminal trespass and public nuisance are also offences.

Meaning and definition

Immovable property includes land, buildings and things attached to the earth. Torts affecting it protect two interests: possession of the land and the use and enjoyment of it. The maxim cujus est solum ejus est usque ad coelum et ad inferos says that the owner of land owns up to the sky and down to the centre of the earth. Courts now apply it with limits.

Detailed explanation

Step 1: Trespass to land

• Trespass to land is the direct and unjustified entry on land in the possession of another, or staying on it, or placing things on it.
• It is actionable per se (without proof of damage).
• The claimant must have possession. A person who is merely the owner of land let to a tenant cannot sue for trespass during the tenancy.
• It is covered in its own note.

Step 2: Nuisance

• Nuisance is the unlawful interference with a person's use or enjoyment of land, or of a right over it.
• The interference comes from outside. Smoke, noise, smell, vibration and fumes are examples.
• It is private when it affects an individual's land. It is public when it affects the public or a class of it.
• Private nuisance usually needs proof of damage. It is covered in its own note.

Step 3: Escape of dangerous things

In Rylands v. Fletcher, a reservoir burst into old mine shafts and flooded a neighbouring mine. A person who brings and keeps a dangerous thing on his land is answerable for the damage if it escapes. This rule is part of the topic on strict liability and is also an application of the maxim sic utere tuo ut alienum non laedas (use your own property so as not to harm another's).

Step 4: Other interferences

• Disturbance of easements such as light, air, water and a right of way.
• Dispossession, which is taking possession from the person entitled.
• waste, which is damage by a person with a limited interest in it.

Step 5: Defences common to the group

• licence, which means leave from the person in possession.
• Justification by law, such as a search under a lawful warrant.
• Necessity, to save life or property.
• Right of way or easement, which may be acquired by long, open and continuous use.
• Statutory authority for nuisance, if the harm is the inevitable result of an authorised act done with due care.

Step 6: Remedies common to the group

• Damages for the loss of use, damage to the land and, for trespass, even nominal damages.
• Injunction, to stop a continuing or repeated wrong.
• Recovery of possession under sections 5 and 6 of the Specific Relief Act.
• Mesne profits, which are the profits that the wrongful occupant made or could have made from the land.
• Self-help: reasonable force to eject a trespasser, and abatement of a nuisance.

• Torts affecting immovable property
  • Direct interference
    • Trespass to land
  • Indirect interference
    • Private nuisance
    • Public nuisance
  • Escape
    • Rylands v. Fletcher

Don't confuse: trespass and nuisance

Point	Trespass	Nuisance
Interference	Direct	Indirect
Interest protected	Possession	Use and enjoyment
Proof of damage	Not needed	Usually needed
Nature of intrusion	A person or thing enters	Smoke, noise, smell, vibration

Common mistakes

• Calling noise or smoke trespass. It is nuisance.
• Saying that trespass needs damage. It does not.
• Saying that the owner can always sue for trespass. Possession is needed.
• Reading the maxim ad coelum without limits.
• Forgetting that a six-month summary suit under section 6 does not need proof of title.

Apply it

Leading case laws

• Entick v. Carrington (1765)

  Facts. The King's messengers entered John Entick's house on a Secretary of State's warrant, stayed four hours and took his books and papers.

  Principle. The warrant was wholly illegal and void. The entry was a trespass.

  Significance. State officials need lawful authority to enter.

• St Helen's Smelting Co. v. Tipping (1865)

  Facts. Fumes from copper smelting works damaged trees and crops on a neighbouring estate.

  Principle. Where there is material injury to property, the character of the locality is no defence.

  Significance. Leading case on private nuisance.

• Rylands v. Fletcher (1868)

  Facts. A reservoir burst into old mine shafts and flooded a neighbouring mine.

  Principle. A person who keeps a dangerous thing on his land is answerable if it escapes.

  Significance. Escape of dangerous things.

How to write this answer in the exam

Key points to remember

• Trespass is direct entry. Nuisance is indirect interference.
• Trespass is actionable per se. Nuisance usually needs damage.
• Possession gives the right to sue for trespass.
• Section 6, Specific Relief Act: recovery of possession within six months, no title needed.
• Remedies: damages, injunction, recovery of possession, mesne profits.

Quick self-test

Related topics

• Trespass to land
• Nuisance - Public Nuisance and Private Nuisance
• Rule of Strict Liability (Rylands v. Fletcher)