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Trespass To Land

"Trespassing on land" is defined as: "interfering with the legal possession of land without justification." Simply explained, "trespass" occurs when a person interferes with another person's possession directly or through a tangible object. If the interference is not considered as direct but significant the wrong may be a 'nuisance'. "Trespass can be committed by physically accessing another person's land or by a person's material object, such as throwing rocks on another person's land, pounding nails into the wall, putting a ladder against the wall, or leaving foreign substance on their roof."[1]

It is not necessary that the use of force, criminal intent, or actual harm to the party is required to create the trespassing offence.

"Trespassing is defined as going beyond the purpose for which a person has entered a location or crossing a border beyond which he has authority."[2] As a result, trespassing occurs when a person permitted to be seated in a drawing room loiters into the bedroom without any valid explanation. A person can't be categorised as a trespasser simply by moving further from the area he was invited to if the area to which he or she is lawfully invited to and the prohibited region are not adequately demarcated.[3]

If a person has due justification to enter the land "i.e. Premise", then their act of entering won't amount to "Trespass."

In "Madhav Vithal Kudwa v. Madhavdas Vallabhdas (1979)"[4]The Plaintiff's tenant, the defendant, parked his car in the parking lot of plaintiff's multi-story apartment. Plaintiff sued him for trespass (defendant parking his automobile without his consent) as well as an injunction to stop him from doing so was also issued.

The court decided that the defendant, as a tenant, has the right to utilise the complex of the multi-story building without the landlord's authorization. "When a landowner agrees to frequent acts of trespass, the visitors may no longer be considered trespassers."[5]

Jus Tertii

Trespass is considered as a violation of possession and not of ownership. As a result, even if the trespasser's possession was wrongful as contrasted to the rightful owner's, a person who possesses actual ownership can sue the trespasser.

As a result, the trespasser is unable to invoke the defence of "jus tertii." As a result, it is impossible to argue that the title of a "third party" is superior to that of the person who is in possession. Thus, in "Graham v. Peat"[6] because "any possession is a legal possession against the wrongdoer," even if the plaintiff was holding the land under an "invalid lease", he was nevertheless entitled to pursue a trespass case against the defendant who had invaded that particular land without lawful basis. A landowner who does not have possession or an imminent claim to possession, on the other hand, cannot initiate a trespassing suit.[7]

Trespassing is conceivable on both the land's surface, which is the soil, and the subsoil. It's possible that separate parties own these various components, such as the surface of the land and the subsoil. Likewise, only the person in possession of the specific piece of land can sue for trespass on the surface or subsoil. However, digging a slot perpendicularly through the land may very well be considered trespass of both the components, and each of these parties may pursue legal course of action.

Nature of Trespass to land

"Trespass is actionable per se," and the plaintiff is under no obligation to show that the trespass caused any damage. "Every invasion of property, be it ever so minute, is a trespass."[8] As in the case of trespass to individuals on chattels, an inevitable accident will be a strong defence.

Trespass ab initio

"When a person enters a premises under the authority of a law and then abuses that authority by committing some wrongful act, he is regarded trespass ab-initio to that property." Non-feasance (failure to do something) in itself is not enough for a person's admission into a certain premise, to be considered trespass ab initio; the individual must have committed a "positive act of misfeasance (doing of a wrongful act)". It's vital to remember that not every act of misfeasance automatically converts a person's legitimate entry into "trespass ab initio".

In "Elias v. Pasmore (1934)"[9], a police officer entered the plaintiff's premises for lawful arrest. He started to remove particular document for which he was not lawfully permitted, which was an act of misfeasance. It was agreed upon that the police officers were merely trespassers in relation to the paper that they removed, not "trespassers ab initio" on the premises in general.

Entry with a license

"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 property, the right is called a licence."

Revocation of license

It is separated into two types for the purpose of the licensor's ability to revoke the licence:

A "bare licence": A "bare licence" is an unrestricted personal authorization or consent to grant enter, cross over, or to be present on another person's territory. Bare licences are usually not assignable (transferable) and can be revoked by the property owner at any given point of time.

A licence coupled with grant: A "licence coupled with a grant or interest in land" develops when someone is granted permission to enter another person's land with the intention of taking anything from that land. This licence is irrevocable for the duration of the interest to which it is adjoined, and it can be assigned unless otherwise agreed.

In some cases, the licensor may agree, either expressly or implicitly, that even a bare licence shall not be revoked, based on the conditions of the contract.

"Wood v. Leadbitter"[10],The plaintiff was ordered to leave the racecourse by the defendant after purchasing a ticket to attend a horse race. The defendant's servant forcibly evicted him when he refused the defendant's instruction. Plaintiff filed a claim for assault. The revocation of the licence was found to be effective since Plaintiff had consequently become a trespasser following the cancellation of his licence.

"Hurst v. Picture Theatres Ltd."[11], Plaintiff went to the movies after purchasing a ticket at one of defendant's theatres. He was wrongfully accused of entering the hall without the purchase of a ticket and ordered to leave. He was forcibly lifted out due to his refusal. The Plaintiff then filed a lawsuit for assault and wrongful imprisonment. The licence was assumed to be granted and could not be cancelled in this case. As a result, the defendant was responsible for his actions and was required to compensate the plaintiff


  1. Re-Entry

    The "right of re-entry" refers to "the right to resume possession". If the possession of a particular property has been transferred to another party for a certain period, the owner is later entitled to get it back, this remedy gives the right to the immediate owner of the land to remove the trespasser using reasonable force in case he refuses to leave. This act wouldn't be considered as trespass. Dismissal of a trespass is a legal right.

    Case: Hemmings V Stoke Poges [12]

    Facts: Hemmings an employee at a golf club was given a cottage on the land of the golf club as a part of his job. He was then asked to leave the job including the cottage. As he refused to leave the golf club authorities forcefully entered the premises, ousted him and his family along with their possessions.

    Held: The court considered this an act of removal of a trespasser or the enforcement of the right to re entry.
  2. Action for Ejectment
    This is a quick remedy for a person who has been evacuated from an "immovable property", without following due course of law. Section 6 of the specific relief act 1963 specifies this remedy. Even a person who has a superior title has no right to dispose another person without following the due process of law.

    If he takes law in his own hands, the person disposed will be given back the property. The plaintiff must prove that he was in "lawful possession" of the property and has been removed without following the legal procedure. The suit for repossession must be brought within 6 months of disposition. A trespasser cannot access this remedy

    Illustration: A stays in the property of B when B is away for two days. B on returning disposes A from the property. In this case B cannot be held liable and A cannot seek remedy as he was a mere trespasser not in possession of the land [13]
  3. Action for Mesne Profits

    The term 'mesne profits' refers to the compensation or damages that can be recovered from the person who has been in "unlawful possession" of a land. When a person has been wrongfully evacuated from an immovable property, along with receiving the property back he may also claim compensation for the losses suffered during disposition. One can sue for ejectment and mesne profits in the same suit. The provision for mesne profits has been stated in section 2(12) of the civil procedure code.

    Case: "Square four assets management and reconstruction co. private ltd. V Orient beverages ltd. and Ors"

    Facts: The defendant who was the tenant to the plaintiff's premise, sub-leased the property to a third person who did not leave the premise even after the expiry of the term

    Held: The mesne profits were calculated from the date of institution of suit till the last date of vacating the premise
  4. Distress damage feasant

    This remedy of distress damage feasant gives the authority to a person in possession of the land to seize the "trespassing cattle or other chattels". He can retain them until compensation has been paid by the owner of the cattle for the damage caused. This forces the owner of the "chattel" to pay compensation in return of his cattle. The thing seized can be anything from cattle, ball, bat, animals etc. however, this right can be enforced only when the object in "unlawfully present, trespassed or caused damages" on the land. Also, the owner of a property is strictly advised to not pursue the object once it leaves his land or once the real owner has taken the object away.

    Case: Boden v. Roscoe[15]

    Facts: A pony enters the defendant's land causing damage. The defendant detains the pony until compensation is paid

    Held: the defendant is justified in his act of detaining the pony and the owner of the pony is liable to pay damages

The topic of trespass dates back to the year 1285 AD. Since then, judicial authorities have been administering relief in cases of trespass. Mere owning of a property isn't enough, it is important to have continuous uninterrupted and peaceful possession of the said properties to enjoy the premises and protect the properties from alien objects. When this right is infringed without having rights provide under law it amounts to trespass. Overall trespass to land refers to unlawfully entering the property owned by third party thereby causing nuisance and prevent them from peaceful enjoyment of their properties to the fullest.

Trespass to property is identified as an offence under the law of torts. While the law not only identifies the issues it also gives suitable remedies to the aggrieved parties and also considers the exceptions to the same. The applications of these laws are however subject to various factors, circumstances and can differ from case to case depending on the facts and situations. One of the major issues with this law is that the intention of the trespasser remains irrelevant to the case.

The mere entry into another person's property can constitute trespass. If a person enters the property by mistake, he would be still held liable. In many cases it also gets very tricky to differentiate trespass to land and nuisance as both are linked to interference with enjoyment of land. Despite the fact that concept of trespass to land has been around for a long time, there are still certain ambiguities in the law that need to be addressed.

  1. All Answers ltd, 'Wood v Leadbitter' (, December 2021) accessed 1 December 2021
  2. 2020. Trespass to land. [online] Available at:> [Accessed 1 December 2021].
  3. Saurabh A, 'Transferability of a Mere Right of Re Entry for The Breach of a Condition Subsequent' (, December 2021 <> accessed 30 November 2021)
  4. Dr. R.K. Bangia's, The law of torts, (22nd edn., 2010)
  1. Konskier v Goodman, [1928] 1 KB 421.
  2. Perera v Vandiyar, [1953] 1 WLR 672.
  3. Pearson v Coleman Brothers, [1948] 2 KB 359.
  4. AIR [1979] Bom. 49.
  5. Lowrey v Walker, [1911] A.C 10.
  6. [1801] 1 East 244.
  7. Baxter v Taylor, [1832] 4B and Ad. 72.
  8. Entick v Carrington, [1765] 19 St. Tr. 1030, 1066.
  9. [1934] 2 KB 164.
  10. [1845] 13 M&W 838.
  11. [1915] 1 KB 1.
  12. [1920] 1 KB 720.
  13. Virjivandas v Mahomed, [1881] 5 bom. 208.
  14. [2016] 144 GA 3289
  15. [1894] 1 QB. 608.

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