An Overview on Trespass

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Basically, Trespass is defined by the act of knowingly entering another person’s property without permission.

Under tort law, a property owner may bring a civil lawsuit against a trespasser in order to recover actual damages or receive compensatory relief for injury suffered as a direct result of a trespass.

In a tort action, the plaintiff must prove that the offender had, but knowingly violated, a legal duty to respect another person’s right to property, which resulted in direct injury or loss to the plaintiff.

Criminal Law

In tort law, trespass is held to infringe upon a property owner’s legal right to enjoy the benefits of ownership. Criminal charges, which range from violation to felony, may be brought against someone who interferes with another person’s legal property rights.

Trespass could be committed either by the person himself entering the land of another person or doing some material object.

For example : Throwing stones on other persons land, having debris upon the roof

Trespass ab initio

A trespass from the beginning. A trespass by retrospective operation, the principle being that where an entry, authority, or license is conferred by law under which conduct otherwise constituting a trespass may be justified, an abuse of such authority will destroy the privilege and render the act done in excess of authority, a trespass from the beginning, that is, from the time of the entry.

Trespass ab initio is a doctrine developed by early common law.  Accordingly, a person who enters a land in exercise of his/her duty authorized by law is said to have committed trespass to land, or property when s/he abuses the power conferred upon him/her by causing damage to the property.  The person will be held liable not only for his/her misconduct but also for the lawful entry into the land.  Thus, in a trespass ab initio claim, the lawful entry will be considered as trespass, because the privilege is abused and harm is caused to another person’s legal interest.

Conditions constituting trespass ab initio are:

1) The authority abused must be an authority granted by law and not by an individual

2) There must be some positive act of misconduct, and not a mere omission or neglect of duty

Entering with license :

Entering certain premises with the authority of the person in possession amounts to a licence and the defendant cannot be made liable for trespass. Eg- Permitting a person to cut a tree on one’s land.

Section 52, Indian Easements Act, 1882 defines ‘Licence’ as under :

“Where one person grants to another, or to a definite number of other persons a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.”

After the licence is revoked, the licensee becomes a trespasser on land and must quit that place within a reasonable time. For the purpose of the right of the licensor to revoke the licence, the licences are considered to be of two kinds:

(i) a bare licence, and 

(ii) a licence coupled with a grant. 

A bare licence can be revoked, whereas a licence which is coupled with the grant cannot be revoked. Eg.- A licence to see a picture is a licence coupled with the grant and the cinemas authorities cannot revoke such a license. Similarly a licence to cut down a tree and carry it away is an example of licence coupled with a grant. In certain cases, the licensor, by the terms of the contract, express or implied, may agree that even a bare licence will also not be revoked. 

Remedies

Re Entry

If a person’s possession has been disturbed by a trespasser, he has a right to use reasonable force to get trespass land vacated. A person, who is thus entitled to the immediate possession, uses reasonable force and regains the possession himself, cannot be sued for a trespass.

Action for ejection

Section 6, specific relief act, 1963 gives a speedy remedy to a person who has been dispossessed of immovable property otherwise than in due course of law.

Action for mesne profit

The law of nature gives the primary right to compensation against the breach of legal right. Likewise, wrongful interference with the immovable property of another is a legal wrong and law of nature gives primary right to damages or compensation for such legal wrong.

The term ‘mesne profits’ relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property. The Mesne profits are nothing but compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property. It is settled principle of law that wrongful possession is the very essence of a claim for mesne profits and the very foundation of the unlawful possessor’s liability therefore. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.

Distress damage Peasant

Distress damage Peasant is a common law self-help legal remedy whereby a person who is in possession of land may impound a chattel which is wrongfully on that land to secure the payment of compensation for damage caused by it. It is part of the law relating to distraint. In some cases the party also has the right to sell the chattel. The chattel may be inanimate, or it may be an animal or livestock.

Any livestock had to be distrained at the time, before they left the land. No cause in distress would stand if the landowner was in any way responsible for allowing the trespass, such as failing to fence off the land.