LAW OF TORT

Lecture-XI
Tort of Trespass

Omer Abdullah
Lecturer, Department of Law
 OBJECTIVES

To understand the basic To Explain Its Different

concept of Trespass essentials and kinds

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 INTRODUCTION

Trespass is an ancient set of wrongs which mainly deals with the direct,
and usually intentional, invasion of a claimant’s interest in either his
person, his land or his goods. Trespass was one of medieval forms of
action, the second being “trespass on the case” or simply “case” case
covered injury which was consequential to a wrong but the wrong was
neither forcible nor direct.

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 MEANING

1) To commit a trespass especially : to enter unlawfully

upon the land of another

2) To make an unwarranted or uninvited incursion

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 EXPLANATION

Trespass means wrongful interference or the interference without the

Permission. This interference can be with the property and body of
the person

Trespass, in law, the unauthorized entry upon land. Initially, trespass

was wrongful conduct directly causing injury or loss and thus was
the origin of the law of torts in common-law countries. Trespass now,
however, is generally confined to issues involving real property 5
 Trespass

Person

Personal
Reputation
Safety
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 Trespass

Property

Moveable Immoveable
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TRESPASS TO PROPERTY

It is also criminal offense deals under PPC

Following are the relevant provision of P.P.C

regarding the concerned topic.
Section 441 and 477 for criminal trespass
Section 442 and 448 for house trespass
Section 443 and 453 for lurking house trespass 8
 CRIMINAL TRESPASS

Definition
“Whoever enters into or upon property in the possession of another with
intent to commit an offence or to intimidate, insult or annoy any person in
possession of such property or having lawfully entered into or upon such
property unlawfully remains there with intent as aforesaid, is said to
commit criminal trespass.”
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 INGREDIENTS

Entry into Property in Possession of Another

There must be entry into or upon property in the

possession of another. Entry may be
accomplished either by physically setting foot
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personally or by some other method
 PROPERTY

The word property in this section is wide

enough to cover moveable property into or upon
which it is possible for a person to enter or upon
entering remain, with intention described in the
section.

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POSSESSION OF ANOTHER

The possession must be actual possession some

person other than the alleged trespasser. It the
complained is not in actual possession of the
property this offence cannot be committed

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UNLAWFUL ENTRY OR UNLAWFULLY
REMAINING THERE

The entry may be lawful or unlawful where the original

entry was lawful i.e without any intention to commit an
offence, but the person entering remains there with the
intent specified in the section, he commits criminal trespass.

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INTENTION TO COMMIT OFFENCE
Offence, Intimidate, Insult or Annoy Person in Possession

Criminal trespass depends on the intention the

offender and not upon the nature of the act intention
must always be gathered from the circumstances of
each case.
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 COMMIT AN OFFENCE

There may be intention to commit an offence. The offence

referred to cannot be the offence of criminal trespass itself,
but must be some other offence either under the P.P.C or under
any special enactment.

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INTIMIDATE, INSULT OR ANNOY

Intimidate means to over awe or to put in fear by some force or

threat of violence. The word annoyance must be taken to mean
annoyance that would generally and reasonably affect an
ordinary person and not a particular individual. Where the
intention is to commit an offence or intimate, insult or annoy
any person in possession it would amount to criminal trespass
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 HOUSE TRESPASS

Whoever commits criminal trespass by entering into or

remaining in any building tent or vessel used as a
human dwelling or any building used as a place for
worship or as a place for the custody of property, is
said to commit house trespass.

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 LURKING HOUSE TRESPASS

Whoever commits house trespass having taken precaution to

conceal such house trespass from some person who has a right to
exclude or eject the trespass from the building, tent or vessel
which is the subject of the trespass, is said to commit lurking
house-trespass

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 ACTIONABLE PER SE

Tort of trespass is actionable per se. It means tortious act will be consider
And continuous until trespasser will remain in property even with out damage

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 REMEDIES

Judicial remedies

Damages

Extra Judicial Remedy

expulsion of trespasser

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 OTHER KINDS

TRESPASS ON AIRSPACE

Intrusion into airspace at a relatively low height constitutes trespass, however, it’s now
settled that land owners rights in airspace extends only to such a height as is necessary
for the ordinary use and enjoyment of land and structures on it.
It means then that an aircraft flying several hundred feet above a house is not trespass
at common law, however, if the aircraft or anything from it falls upon the land or
comes into contact with a structure on the land, it results into trespass no matter the
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height from which it fell.

 CASE LAW

Bensten v. Skynews and General ltd [1978] QB 479

The defendant used an overflying airplane to obtain photographs of Lord

Bernstein’s country residence. Lord Bernstein claimed that in so doing the
defendant was trespassing in his airspace and invading his right to privacy. The
court held that the defendant was not liable for trespass. The rationale was “the
problem is to balance the rights of an owner to enjoy the use of his land against
the rights of the general public to take advantages of all that science now often22
in the use of airspace.
 CIVIL AVIATION ACT

Section 76(2) of the Civil Aviation Act states that if a hijacker flies an aircraft
into a building the owner of the aircraft is liable. There is a proviso to that
effect; that if the owner’s liability arises only by virtue of the section and if a
legal liability to pay damages for the loss in question exists in some other
person then the owner is entitled to be indemnified by that other person.
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TRESPASS BY PLACING THINGS ON LAND

Is committed by him who places any material thing on

the plaintiffs land or who allows such material to come
into contact with or cross boundary of the plaintiff’s land.
This type of trespass is similar to nuisance but the two
are different in this aspects

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 BY PLACING THINGS ON LAND (CONT..)

In trespass, injury is direct since it affects the plaintiff’s possession but in

nuisance the injury is indirect because it is the plaintiffs comfort and
convenience in the use and enjoyment of land that is affected rather than its
possession.
While trespass relates to possession of land, nuisance relates to the use or
enjoyment of land i.e. in trespass possession of land is at stake, while in
nuisance it is the use and enjoyment of the land that is at stake 25
 TRESPASS TO SUBSOIL

Any intrusion upon the subsoil is just as much trespass as entry upon the
surface. The surface and the subsoil can be possessed by different persons.
If A is in possession of the surface and B, the subsoil and I walk on the land
that would result into trespass against A and not against B.
If I dig a hole vertically in the land, that would be trespass against both A
and B. If I bore a tunnel from my land into B’s subsoil, that would be
trespass against B only.
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 DEFENCES

• Lincence
• Necessity
• Acquiesce
• Justification By Law
• Consent
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 CONCLUSION

It is important to remember that the ‘gist’ of

trespass is the defendant’s conduct (is it

negligent?) and the link between that and the

claimant’s damage (causation and remoteness).

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