Trespass to Land
Chapter Twenty-Five
Syllabus topic 2.2, "Torts affecting Property (Movable & Immovable): Trespass, Trespass ab initio etc."
Pages 106 to 109 of 434
In one line
Trespass to land is entering, or putting something on, land in another's possession without permission, and it is actionable although no harm is done.
In the wording a student can write in an exam: trespass to land is any unjustifiable interference with land in the possession of another, committed by entering upon it, by remaining on it after the right of entry has ended, or by placing or projecting any object upon it; it is actionable per se, that is, without proof of damage; the interest protected is POSSESSION and not ownership, so a person in possession may sue even a rightful owner who enters without process of law.
Possession, not ownership
This is the most important sentence in the chapter. The action protects possession. A tenant, a licensee in exclusive occupation, and even a person in wrongful possession may sue a stranger who enters. An owner who is out of possession cannot sue in trespass; he must first recover possession, and chapter [Remedies for Trespass to Land] explains how.
The reason is practical: the law wants disputes about land settled in court rather than by whoever is strongest on the day. Section 6 of the Specific Relief Act 1963 embodies exactly that policy by giving a summary suit to a person dispossessed without his consent otherwise than in due course of law, even against the true owner.
The three ways it is committed
1. Entry upon land. Walking on to it, driving on to it, sending an animal on to it, or entering any part of it. The entry need only be intentional in the sense that the defendant meant to be where he was: a person who walks on to land honestly believing it to be his own is still a trespasser, since mistake is no defence, as chapter [General Defences II] explains.
2. Remaining on land. A person who entered lawfully and stays after his right has ended becomes a trespasser. A guest asked to leave who does not leave is the standard example.
3. Placing things on land. Throwing rubbish, piling building material, letting a wall lean over, growing tree branches across the boundary, or allowing water to flow on to the neighbour's land.
Trespass to the airspace and to the subsoil
Possession of land carries with it possession of the column of space above and the soil beneath, so far as is necessary for the ordinary use and enjoyment of the land.
Above. A signboard projecting over a neighbour's land, a crane swinging across it, or wires strung over it are trespasses. Aircraft flying at a reasonable height are not, and statutes deal with them expressly.
Below. Tunnelling or mining under the surface, or driving foundations into the neighbour's subsoil, is a trespass.
Trespass to Land
Continuing trespass
Where the trespass consists of leaving something on the land, or of remaining on it, a fresh cause of action arises every day it continues. This matters for limitation: article 87 of the Schedule to the Limitation Act 1963 gives three years from the date of the trespass, but section 22 of that Act provides that in the case of a continuing tort a fresh period runs at every moment during which it continues. So a heap of rubble left on a neighbour's land in 2020 is still actionable in 2026, though damages are confined to the period within limitation.
Defences
Licence. Permission, express or implied, is a complete answer while it lasts. Permission may be revoked, and after a reasonable time to leave, the person becomes a trespasser.
Authority of law. Entry by an officer executing a warrant, by a public servant under statutory power, or by a person exercising a right of way.
Necessity. Entry to put out a fire or to save life.
Re-entry by a person entitled to possession, using no more force than is reasonable.
Justification by an easement or a customary right.
What is NOT a defence: mistake, honest belief in one's own title, absence of damage, or the fact that the trespass benefited the occupier.
A worked example
Deepa is the tenant of a plot in Nashik. Her landlord is Farooq.
One. A stranger walks across the plot each morning as a short cut, doing no harm. Deepa may sue him in trespass. Damage is not needed and the shortness of the crossing is irrelevant.
Two. Farooq, the owner, enters and starts building a shed. Deepa may sue Farooq too, because the action protects her possession and he has no right to take the law into his own hands. If he dispossesses her, section 6 of the Specific Relief Act 1963 gives her a summary suit to be restored.
Three. A neighbour's mango tree grows so that its branches hang over the plot. That is a trespass by projection while the branches remain, and it is also capable of being a nuisance; chapter [Private Nuisance] draws the line.
Four. The fire brigade breaks the gate to reach a burning house next door. That is not a trespass, because necessity justifies it.
Five. Deepa herself invites a surveyor on to the land, then asks him to leave, and he refuses. He entered lawfully and is now a trespasser by remaining.
Distinctions that carry marks
| Trespass to land | Nuisance | |
|---|---|---|
| Nature of the interference | Direct | Indirect or consequential |
| Damage | Not required | Ordinarily must be proved |
| Interest protected | Possession | Use and enjoyment of land |
| Example | Throwing stones on to the land | Smoke or noise drifting on to it |
Trespass to Land
| Trespass | Dispossession | |
|---|---|---|
| What the defendant does | Interferes with possession | Takes possession |
| Remedy | Damages and injunction | Recovery of possession, sections 5 and 6 of the Specific Relief Act 1963 |
What it does NOT mean
It does not require damage. The tort is actionable per se.
It does not require knowledge that the land was another's. Mistake is no defence.
It does not protect ownership as such. It protects possession, which is why an owner out of possession must sue for possession instead.
It does not last forever after a single entry. A single entry gives one cause of action; leaving something behind gives a continuing one.
Quick revision
- Trespass to land: unjustifiable interference with land in another's possession, actionable per se.
- Three forms: entry, remaining after the right has ended, and placing or projecting things.
- It protects POSSESSION, so a tenant may sue and an owner out of possession may not.
- Airspace and subsoil are protected so far as necessary for ordinary use and enjoyment.
- Mistake and absence of damage are no defence; licence, authority of law, necessity and re-entry are.
- Continuing trespass: section 22 of the Limitation Act 1963 gives a fresh period every moment; article 87 gives three years from the trespass.
- Section 6 of the Specific Relief Act 1963 gives a summary suit to a person dispossessed otherwise than in due course of law, even against the true owner.
Test yourself
1. Define trespass to land and state its essentials. Trespass to land is any unjustifiable interference with land in the possession of another. It is committed by entering upon the land, by remaining on it after the right of entry has ended, or by placing or projecting any object upon it, and it extends to the airspace above and the soil beneath so far as is necessary for the ordinary use and enjoyment of the land. Its essentials are an intentional act by the defendant, interference with land in the plaintiff's possession, and absence of lawful justification. Damage is not an essential, because the tort is actionable per se, and mistake is no defence, so a person who enters honestly believing the land to be his own is still a trespasser.
2. "Trespass protects possession, not ownership." Explain. The action lies at the suit of the person in possession, because what the tort protects is the exclusive control of the land rather than title to it. A tenant, a licensee in exclusive occupation and even a person in wrongful possession may therefore sue a stranger, while an owner who is out of possession cannot sue in trespass at all and must instead sue to recover possession under section 5 of the Specific Relief Act 1963. The policy is that disputes about land are to be settled by the courts and not by self-help: section 6 of the same Act gives a person dispossessed otherwise than in due course of law a summary suit for restoration, which succeeds even against the true owner, precisely so that a title-holder cannot enforce his title by force.
Trespass to Land
3. What is a continuing trespass, and why does it matter? A continuing trespass is one that consists in a state of affairs rather than a single act: remaining on land after a licence has ended, or leaving rubble, a wall or a projecting structure there. It matters for limitation. Article 87 of the Schedule to the Limitation Act 1963 prescribes three years from the date of the trespass, which would bar a claim three years after the thing was placed, but section 22 provides that in a continuing tort a fresh period of limitation begins at every moment during which the tort continues. So the claim survives while the state of affairs lasts, though the damages recoverable are confined to the period within limitation. It also matters for the remedy, since a continuing trespass is the natural case for an injunction rather than damages alone.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.