Trespass to land

In one minute

Trespass to land is the direct and unjustified entry on land in the possession of another, or staying on it, or placing something on it. It is actionable without proof of damage, because the law protects possession.

In exams, this topic is asked as "define trespass to land and state its essentials, defences and remedies", and as a problem on entry by officials or a person who stays on after permission ends.

Legal provision

• Specific Relief Act, 1963, sections 5 and 6: recovery of possession of immovable property. Section 6 allows a summary suit within six months by a person dispossessed without consent and without due process, with no need to prove title.
• Specific Relief Act, 1963, sections 36 to 42: injunctions to stop a continuing or repeated trespass.
• Indian Easements Act, 1882: a right of way or other easement can be a defence to trespass.
• Limitation Act, 1963: a suit for possession based on title must be filed within 12 years from the time the possession of the defendant becomes adverse.
• Bharatiya Nyaya Sanhita, 2023: criminal trespass is an offence. The civil claim and the criminal case are separate.
• Articles 21 and 300A, Constitution of India: entry by State officials must have the authority of law.

Meaning and definition

Trespass to land is the unjustified, direct interference with land in the possession of another. The interference can be by entry, by staying after permission ends, or by placing or throwing things on the land. The wrong is to the claimant's possession. The tort is actionable per se (without proof of damage).

Detailed explanation

Step 1: The essentials

1. Interference with land. This includes the surface, the soil below and the air space above, to the height that the owner reasonably uses. Land includes buildings and things fixed to it.
2. Directness. The entry must follow directly from the defendant's act. If the harm comes indirectly, as with smoke, it is nuisance.
3. Voluntary act. Being thrown onto land by force is not trespass by the person thrown. The person who threw him is liable.
4. Possession in the claimant. The claimant must have actual or constructive possession, or the right to immediate possession.
5. No lawful justification.

Step 2: Who can sue

• A person in possession can sue, even a wrongful possessor, against a stranger with no better right.
• A landlord cannot sue a stranger for trespass during the tenancy, because the tenant has possession. He can sue if the trespass damages his reversion.
• Possession is good against everyone except the person with a better right.

Step 3: Forms of trespass

• Entry. Walking, driving or sending an animal or object onto the land. In Basely v. Clarkson (1681), the defendant mowed grass on his neighbour's land by mistake, believing it to be his own. He was liable, because a mistake about ownership is no defence.
• Remaining. Staying after a licence is withdrawn or ends.
• Placing things. In Kelsen v. Imperial Tobacco Co. (1957), an advertising sign fixed to a neighbouring wall and overhanging the claimant's air space by eight inches was a trespass.
• Air space. In Bernstein v. Skyviews & General Ltd. (1978), a flight at a height that did not interfere with the owner's use was no trespass. The owner's rights extend only to the height necessary for the ordinary use and enjoyment of the land.

Step 4: Continuing trespass

• A trespass that goes on, such as leaving a thing on the land, is a continuing trespass. A fresh cause of action arises each day.
• The claimant can sue repeatedly and can ask for an injunction to remove the thing.

Step 5: Trespass ab initio

A person who enters under authority of law and then abuses it is treated as a trespasser from the start. The rule applies to entry authorised by law, not by the owner's permission. Misuse of the authority after entry makes the whole entry wrongful. The rule is now seen as narrow, and the courts apply it with care.

Step 6: Entry by State officials

In Entick v. Carrington, King's messengers entered Entick's house on a Secretary of State's warrant. They stayed four hours and took his books and papers. The Court held the warrant wholly illegal and void. The case is the base of the rule that State officers need lawful authority to enter private property.

Step 7: Defences

• Consent. The owner or the person in possession gave a licence for the entry. A licence can be express or implied, and can be withdrawn.
• Justification by law. A warrant, a court order or a statutory power to enter, for example a lawful search.
• Necessity. Entry to save life, or to prevent serious harm to property.
• Self-defence or defence of property. Using reasonable force.
• Easement or right of way. A right to cross the land.
• Re-entry on the land after a wrongful dispossession, by the person entitled, using no more force than needed.
• Inevitable accident. The entry was not intended and no negligence is shown.

Step 8: Remedies

• Damages. Even nominal damages if no loss is proved. Substantial damages for damage to the land and for aggravated or exemplary harm in a proper case.
• Injunction. To restrain a continuing or repeated trespass.
• Recovery of possession under sections 5 and 6 of the Specific Relief Act. Section 6 suits need no proof of title.
• Mesne profits. The profits that the wrongful occupant made or could have made.
• Self-help. Reasonable force to eject a trespasser, after a request to leave.

1. 1. Was land in the claimant's possession interfered with?
   If no: no trespass.
2. 2. Was the interference direct?
   If no: consider nuisance.
3. 3. Was the act voluntary?
   If no: no trespass by this defendant.
4. 4. Was there lawful justification such as a licence?
   If yes: defence. If no: trespass.

Don't confuse: trespass and nuisance

Point	Trespass to land	Nuisance
Interference	Direct	Indirect
Interest protected	Possession	Use and enjoyment
Proof of damage	Not needed	Usually needed
Who can sue	The person in possession	A person with an interest in the land

Common mistakes

• Saying that trespass needs damage. It is actionable per se.
• Saying that a mistake about ownership is a defence. Basely v. Clarkson shows it is not.
• Letting the owner sue when the tenant has possession.
• Treating indirect harm such as smoke as trespass. It is nuisance.
• Ignoring that a licence can be withdrawn, which turns a visitor into a trespasser.

Apply it

Leading case laws

• Entick v. Carrington (1765)

  Facts. On 11 November 1762 four King's messengers entered John Entick's house on Lord Halifax's warrant. They stayed four hours, opened his desk and drawers, and took his books and papers.

  Principle. The warrant was wholly illegal and void. Judgment for the claimant.

  Significance. State officers need lawful authority to enter.

• Basely v. Clarkson (1681)

  Facts. The defendant mowed grass on his neighbour's land, believing it was his own.

  Principle. A mistake about ownership is no defence to trespass.

  Significance. Trespass does not depend on bad intent.

• Kelsen v. Imperial Tobacco Co. (1957)

  Facts. A sign fixed to the neighbouring building overhung the claimant's air space by eight inches.

  Principle. The overhanging sign was a trespass.

  Significance. Trespass reaches the air space.

• Bernstein v. Skyviews & General Ltd. (1978)

  Facts. An aircraft flew at a height and took an aerial photograph of the claimant's house.

  Principle. The owner's rights in air space extend only to the height needed for the ordinary use of the land.

  Significance. Limits the ad coelum maxim.

How to write this answer in the exam

Key points to remember

• Trespass to land is direct and unjustified interference with land in another's possession.
• Actionable per se. The wrong is to possession.
• A mistake about ownership is no defence.
• A licence can be withdrawn, and a visitor then becomes a trespasser.
• Remedies: damages, injunction, recovery of possession, mesne profits.

Quick self-test

Related topics

• Nuisance - Public Nuisance and Private Nuisance
• Torts affecting Immovable Property
• Wrongful Act and Legal Damage - Damnum Sine Injuria and Injuria Sine Damno