January 23, 2022

Trespass to Person and Trespass to Property

law of torts

In the contemporary times, each individual wishes to protect his or her body and the property from the external interference as well as from the malafide intention to harm it. Several instances have been there where the wrongful intervention of an individual in other’s property and body leads to damage publically or privately. Trespass is a common term to protect common man from such injury.

Intentional wrongful act done directly with a view to harm the other person or his or her property is called as trespass. Intentional wrongful act here implies that the act should be committed voluntarily. In other words, intention is a necessary element of trespass.

Trespass can be categorised into two types:

  1. Trespass to person
  2. Trespass to property and goods

Trespass to person

It is an unreasonable interference, with malafide intentions, with an individual’s body which is committed either by causing physical harm or by the apprehension of use of force. It is further divided into assault, battery and false imprisonment.

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. In the case of R v. S. George[1], 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[2], 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

When force is used against a person in a manner that it causes a physical injury to the person, then the use of such force is termed as battery. The force so used should be intentional and without lawful justification. In other words, unintentional or lawful use of force cannot be termed as battery. In the case of Stanley v. Powell[3], 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.[4], 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[5], 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.

Mayhem

It is a tort that injures an individual to such an extent that the victim is unable to defend himself from the wrongdoer. Injuries to arm, hand, leg, foot in a manner that the body parts become disabled are the examples of mayhem. It is sometimes termed as aggravated battery. In the case of Fetter v. Beale[6], the plaintiff received damages from the defendant for battery committed by him. Soon after, part of his skull also came out of his head as a result of the battery. Consequentially the plaintiff also sued the defendant for mayhem. The defendant was also held liable for mayhem and had to compensate the defendant.

False Imprisonment

When a person is intentionally restricted from exercising his or her freedom, the person is said to be falsely imprisoned. The cause of imprisonment, plaintiff’s knowledge of his or confinement and the intention of the defendant constitute the factors for the wrongful imprisonment.

In the case of Herring v. Boyle[7], a school teacher without any justified reason refused to permit a school boy to leave the school with his mother unless the mother paid the amount of the fees which was unpaid, this dialogue between the teacher and the mother when the boy was not present there and the boy was not aware of the fact that he was in wrongful restraint. Since the person who was restrained did not have the knowledge of the fact, the court held that this did not amount to false imprisonment and the school teacher was not held liable.

In the other case of Meering v. Graham White Aviation[8], the plaintiff was asked to be into a room with two security guards working for the aviation company. He asked for the reason and put a condition that if he was not told the reason he would leave the room. He was told regarding the doubt of theft and therefore he agreed to stay. The guards stayed outside until the police officers arrived. It was not known to him that the guards were ordered to prevent the man from leaving the room. It was held that the act fulfilled the requirement for a person to be falsely imprisoned and therefore the plaintiff was allowed to receive the damages.

Defences to Trespass to Person

Valid Arrest

Lawful detention of a person if there is sufficient reason to believe that the person is indulged in an offence or involved in a wrongdoing does not amount to false imprisonment. A person can also be lawfully arrested for arresting a citizen without any justified reason.

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.[9], 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.

Probable Cause

Sometimes imprisonment is justified on the basis that it was alleged that the defendant was a participant in a crime. Such imprisonment is not considered as false imprisonment.

Self Defence

It is lawful for any person to use reasonable amount of force for self protection or protection of any other person or property against any unlawful use of force. However use of such force should be reasonable and proportionate. In the case of Cresswell v. Sirl[10], the son of defendant shot plaintiff’s dog because the dog attacked his pigs and sheep. The plaintiff sued the defendant. The Court of Appeal held there was no other way to save animals other then shooting the dog and therefore neither the defendant nor his son was held liable for the killing of the dog.

Remedies to Trespass to Person

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.

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.

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[11] and Bhim Singh v. State of Jammu and Kashmir[12], the Supreme Court has granted compensation in the writs of Habeas Corpus.

Trespass to Property or Goods

Wrongful intervention of one over the property or goods belonging to another without any lawful justification is called as trespass to land or trespass to goods respectively. This interference should be of direct and physical nature. Trespass to property is looked with the purview of possession rather than ownership of the goods or the property. In other words, a person who is having the possession of the goods or the property can bring a suit for trespass against the lawful owner if such owner cannot provide lawful justification for such intervention.

In the case of Madhav Vithal Kudwa v. Madhavdas Vallabhdas[13], 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[14], 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[15], 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.

Aerial Trespass

The possessor of the land has the right to the airspace above the surface of the earth till infinity. However in contemporary times, the possessor of the land has right to air space above and earth below to the height and depth as is required for the ordinary use and enjoyment of land. In the case of Bernstein v. Skyviews[16], Bernstein sued the defendants for trespass by shooting pictures from significant height above the ground of his house. The court held that at such height the plaintiff had no justified use of airspace and therefore the defendant was not held liable for aerial trespass.

Trespass by Animals

The livestock keepers are responsible for any damage caused by their animals on the land of another person. They are also liable even in the case their cattle trespasses on their own. The Cattle Trespass Act, 1871 looks into in this matter in India.

Trespass ab initio

A person who has legally entered into the premises of a person commits trespass after his right to enter has came to an end. His act would make his original entry tortuous and such person would be held liable for reimbursement not only for the entry but for all subsequent acts. Such trespass is termed as trespass ab initio. In the case of Minister of Health[17], it was held that a licensee, whose license has expired, can be prosecuted for trespassing if upon request he does not vacate the premises in a reasonable time.

Remedies to Trespass against Property

The person whose possession rights of land are infringed can bring a suit for trespass against the tortfeasor. He may also secure his or her possession against a trespasser using reasonable amount of force.

Damages

Compensation: Financial damages can be procured from the defendant if significant losses have been suffered as a result of such trespass. However, a nominal compensation is generally granted if no injury is suffered.

Injunction: Sometimes the plaintiff does not ask for compensation but seeks an injunction from the court to prevent continuing or future trespass. This injunction, for example, can be in the form of removal of a tree belonging to the defendant.

Defences against Trespass to Property

Consent: The act of intervention into the land or goods would not amount to trespass if the possessor gives consent to the plaintiff voluntarily. In other words, the consensual act of intervention would amount to trespass if such consent was induced by fraud, intoxication or an incompetent person.

Public Necessity: When a person intentionally goes into the property of other person for the sake of protecting the community from an immediate and imperative harm, then such interference would not be considered trespass. In the case of Esso Petroleum Co v Southport Corporation[18], the captain of a ship committed trespass by letting oil to flood a shoreline. It was necessary to protect his ship and crew members. Since this was a necessity, the defence of public necessity was accepted. However this defence would not be granted when the person had alternative courses of action.

Justification by Law: It is a defence in those situations where a person is permitted to enter into the premises of someone by the way of Statute or law of the land. For example police officers, income tax officers etc.

For more notes on Law of torts, Click Here.

For law notes, Click Here.


[1] R v. S. George (Supreme Court of Canada 1960).

[2] R v. Constanza [1997] 2 Cr App Rep 492

[3] Stanley v. Powell (1891) 1 Q.B. 86

[4] Pratap Daji v. B.B.& C.I. Rly. (1877) ILR 1 Bom 52

[5] Innes v. Wylie (1844) 1 C & K 257

[6] Fetter v. Beale 91 Eng. Rep. 1122

[7] Herring v. Boyle 149 ER 1126 (Exch)

[8] Meering v. Graham White Aviation (1919) 122 LTR 44 (KB)

[9] Robinson v. Balmin New Ferry Company Ltd. [1910] AC 295

[10] Cresswell v. Sirl (1948) 1 K.B. 241

[11] Rudal Shah v. State of Bihar (1983) 4 SCC 141

[12] Bhim Singh v. State of Jammu and Kashmir  AIR 1986 SC 494

[13] Madhav Vithal Kudwa v. Madhavdas Vallabhdas AIR 1979 Bom. 49

[14] Basely v. Clarkson (1681) 3 Lev 37 CP

[15] Smith v. Stone (1647) 82 ER 533

[16] Bernstein v. Skyviews [1978] QB 479

[17] Minister of Health [1944] KB 298, CA

[18] Esso Petroleum Co v Southport Corporation [1956] AC 28


Author Details: Tushita Maheshwari (Student, Rajiv Gandhi National University of Law, Punjab, Patiala, Punjab)

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