It is pretty obvious that everyone wants to protect themselves and their property in any situation. But it is true that to protect it one needs a law who will take care of such acts and provide compensation to the victim and punishment to the wrongdoers. The word ‘tort’ basically means the wrongful act to another party. ‘Tort’ is a French word meaning ‘wrong’ in English and delict in Roman law. It is derived from Latin word ‘tortum’ which means twisted or crooked. It is a civil wrong. It’s aim is to provide relief to the people from civil wrong and provide security to people and freedom from violence.The word ‘trespass’ is derived from the Latin word ‘transspassare’ and French word ‘trespasser’ meaning pass across. Trespass refers to unlawful and unauthorised entry of a person on another’s property which includes wrongful possession of someone’s goods.
Trespass is the area of criminal law as well as torts. It is a civil wrong which can give rise to criminal proceedings. A person is said to have committed trespass if he/she enters into another’s property illegally or without the consent of the owner or causing any bodily injury to the person. Trespass can be civil as well as criminal. A person is said to commit criminal trespass if he causes any bodily injury to that person without any consent and legal injury was suffered. The main difference between civil trespass and criminal trespass is criminal intention. Therefore, a civil trespass is converted into criminal trespass when the trespasser has an intention to commit offence, to insult, to annoy or to cause any harm to the owner or the property. If the owner or victim does not take action in prescribed time then he loses the right to seek remedy.
In Mathuri and Ors v. State of Punjab[1], the Supreme Court of India held that to prove that the entry on the property was with the intention to cause any harm, it is necessary for the court to be satisfied that causing such harm was the aim of entry.
There are three forms of trespass:-
- Trespass to land;
- Trespass to person;
- Trespass to goods.
Trespass to Land
Commonly, trespass to land is known as trespass. The tort of trespass to land is committed when a person enters another’s land without the consent and legal right or continues to live on the land whose permission is expired or throwing things to others’ land or uses the right to entry for other purposes except for which it was allowed. Even if a person enters another’s land with a bad intention such as stealing or to cause harm to the property then he commits trespass to land. Even if no harm is done to the property if a person unlawfully enters into someone’s property then he has committed trespass to land. The trespasser is liable for all the damages that happened because of his entry. Trespass to land includes the subsoil, airspace and anything which is attached to the land such as house, trees, etc. Similarly, if a person cuts down a tree and its lands on others property then they are responsible for the damage done. If a person accidentally enters to some one property then there is no trespass as he did not intend to do so.
In United States v. Causby[2], the U.S. Supreme Court held that because the airspace above land is like a public highway, ordinary airplane flights cannot commit trespass. In this case, however, the planes were flying below levels approved by federal law and regulations, so the government was held responsible.
Trespass to Person
Trespass to a person is committed when there is any direct interference with another person. It includes Assault, Battery, False Imprisonment. Historically, trespass to a person includes six trespass i.e. threat, assault, battery, wounding, mayhem and false imprisonment. As times flows now we only recognise three trespasses in trespass to person. It is not only limited to people but also to pet. Owners of animals are responsible for animal trespass or damage by them in some areas.[3]
Assault
Assault refers to any conduct or threat or violence that may create fear of danger to another. It includes making any gestures. For example- shaking of fists, etc. In assault the person threatened must be in fear of danger. Assault also comes under the Section 351 of the IPC.
Battery
Battery refers to actual use of force against the person directly or indirectly. The conduct must cause actual bodily contact between the person in a rude or bad manner. The aim of battery is to cause hurt to another person. For example- splitting on others, touching another person against his will or in anger, etc. In both assault and battery damage doesn’t matter.
False Imprisonment
False Imprisonment refers to the stop or hinder of the liberty of a person without lawful ground. It is immaterial whether the victim has the knowledge of it. Even the duration of imprisonment does not matter. Physical force is not necessary and restraint must be complete.
For example- locking someone in the room when he is asleep and opening it when awake, etc.
In Bici v. Ministry of Defence[4], two men were shot and two other travellers were wounded by three British soldiers in Kosovo. The Ministry of Defence was vicariously liable. In the case of trespass to the person, the court held that even though the soldiers had managed to shoot a man they were not aiming at, it was a case of transferred intent and that battery had been committed.
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Trespass to Goods
The tort of trespass of goods is said to be committed when there is wrongful interference with goods. This may include wrongful conversion, injury to the goods, damaging, breaking them, moving them, etc.
It has three forms:-
Trespass of chattels
It is said to be committed when interference with goods is done. It includes removal of goods from one place to another, using the goods, destroying or damaging the goods.
Goods detente
It is said to be committed when someone wrongfully withhold goods from the person. For example- A lends her pen to B, B refuses to return. If a person finds a lost moveable property, not knowing the true owner then he may claim the property except the true owner.
Conversion
It is said to be committed when someone starts dealing with goods without the consent of the owner. For example- A sells B’s pen without her consent.
In trespass to goods there shall be lack of consent, actual harm and intention. If a person wilfully damages or breaks others property then he constitutes conversion.
A leading case on this point is KM Abdul Subhan v. S Ramaiah[5]. In this case trespass on goods is described as unlawful disturbance of the possession of the goods by direct act causing damage to goods. Detinue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is the unlawful failure to deliver them up when demanded.
Defenses to Trespass
- License – This is a defence to trespass to land. Permission given by the owner of land to go to his land. Once the agreement or allowance is revoked or ends, the person becomes a trespasser.
- Justification by law- This is defence to trespass to land. These are situations in which the person has the legal right to enter the property. For example – Police are allowed to arrest someone, etc.
- Necessity- This is defence to trespass to land. The situations in which a person needs to commit trespassing. For example – if a place is on fire,etc.
- Child Correction/ Parental Authority – This is a defence to trespass to a person. This defence is given to parents or guardians to trespass for children’s good future. But unreasonable punishment is not a defence.
- Consent – This defence is given when people themselves give their consent to someone to touch them such as sporting games, rugby, fist fight, etc.
Defence of own body, others, property- It is a valid defence to use reasonable force or trespass against trespassers.
Conclusion
Generally, it is common to face trespass many times a day, many times people ignore it or don’t pay attention to it or tolerate it. But one must know its nature and impact of it on the victim. This law is made to provide security to people form civil wrong which generally we ignore. For example most of the time we see people throwing water or waste on others property, but usually we ignore it. Because people don’t give much importance and attention to the law of torts. Many people intentionally cause harm to others. This is therefore a great danger. Few people are persuaded to change it but they are not actually able to make it happen till now. I derived my views from the people I spend time with or the people I meet. This is a major challenge to the society whether people are willing to ignore or tolerate it or ready to recognize it.
REFERENCES
[1] 1964 AIR 986 1964 SCR (5) 916.
[2] 1946, 328 U.S. 256, 66 S. Ct. 1062 (1946).
[3] Restatement (Second) of Torts § 217(b).
[4] [2004] EWHC 786 (QB).
[5] AIR 1952 Kant 90.
BY SAKSHI | LLOYD LAW COLLEGE