CONCEPT OF TRESPASSING UNDER TORT LAW


Author: Yashika Mishra, Institute Of Law

Nirma University









INTRODUCTION

The word ‘Tort’ is derived from the Latin word ‘Tortum’ which means twisted, not straight, not right or a crooked act. In legal parlance, Tort is basically a civil wrong for which the remedy is unliquidated damages (i.e. damages that cannot be predetermined). There are two basic essentials for a Tort to take place: there shall be an act or an omission and such act or an omission shall result in violation of the legal right of another person. Generally, it is a breach of duty which amounts to a civil wrong. The Law of Torts is not recognized in any documented form; instead it has been developed through various judicial decisions which are based on English common law principles of justice, equity and good conscience. The tort of Trespass is hence one of the oldest and widest Tort which covers both civil and criminal aspects within itself. Interfering/ intruding/ transgressing into the property of another person without any lawful justification is a Tort of Trespass or in legal terms it is an intentionally directed and, unreasonable interference with one’s person and property.



TYPES OF TRESPASS:

As mentioned the tort of trespass can have both; civil and criminal liability. Therefore criminal trespass includes:



TRESPASS TO BODY:

A person is said to have committed criminal trespass to the body of a person when he is indulged into direct and forcible bodily interference without any consent of a person in question and there shall be a legal injury i.e. violation of a legal right of that person. The tort of trespass against body can be further divided into:



ASSAULT:

When the wrongdoer by his act creates a reasonable apprehension in the mind of the victim that he is going to inflict harm on the body of the victim, the wrong of assault is said to be completed. The wrong is merely an attempt to do harm not the harm itself. For instance, if A points a gun at B, it is said to be an assault. But if the gun is not loaded and it is pointed at B, then too it will be an assault, if pointed at such a distance that if loaded might cause injury to B. Therefore, the test to the wrong of Assault is that there should be an apprehension in the mind of the person concerned that there is going to be a harm inflicted upon him. If the plaintiff knows that the gun is not loaded then it cannot be said that assault has been committed. Also, it is necessary that there shall be a prima facie ability to inflict harm upon the person. For example: if X is at such a distance from Y that even if X shows a fist to Y from that distance, there cannot be any reasonable apprehension in the mind of the person that any harm is going to be inflicted upon him, therefore no assault. Similarly, if there is a verbal threat which does not hold ability for the threat to be executed then it cannot constitute the wrong of an assault.



BATTERY:

When there is an intentional application of force on another person without any lawful justification, then the wrong of Battery is said to be committed. Therefore, there shall be use of force, the same without any lawful justification, and actual use of force no matter how trivial or small constitute the three essentials that tests the completion of the tort of battery. Intention is relevant consideration in determining tortious liability of Battery. Harm inflicted with a malafide intention constitutes battery whereas harm which is unintentional and caused merely by pure accident is no battery. For example: If A hurts B while saving him from drowning into a river then no wrong of Battery is said to be committed. Also, harm that is voluntarily suffered cannot constitute the wrong of a Battery. Besides, if a person uses force to oust a trespasser from a certain property, then the force used is justified having said that the force used must be reasonable and not more than what is necessary to force the person out. If excessive force is used, the person then becomes liable for the wrong of battery.


FALSE IMPRISONMENT:

If there is an imposition of a total restraint for some period, even for a short span, thereby endangering the liberty of another, without any sufficient lawful justification, then the wrong of false imprisonment is said to be committed. To simplify, if a person is confined either within the four walls or is restrained by a threat of force, from leaving a particular premises, there exists a false imprisonment. There are two essentials that constitute false imprisonment:

(i.) There shall be a total restraint on the liberty of a person.

(ii.) The same shall be without any lawful justification.

Section 340 of the Indian Penal Code also defines false imprisonment as ‘Wrongful Confinement’. Another provision for the protection of a person’s liberty lies in the Article 22 of the Constitution of India which provides for protection against unlawful arrests and detention and even directs the state to follow a due procedure while carrying out the arrest related activities.



DEFENCE AGAINST TRESPASS TO BODY:

❖ In order to protect himself, a person can trespass the property of another keeping in mind the probability and proportionality if intruding one’s property and he shall prove that there was no other option left other than intruding in order to protect him.

❖ The statutory authorities in order to carry out search and seizures compelled by the law of land and where consent is taken to conduct a bodily search would not be constructed as a trespass on the body of a person.

❖ When the plaintiff is negligent in the act, then the defendant alone cannot be liable. The liability can either be mitigated for a compromise or divided among the parties.



TRESPASS TO LAND:

If a person interferes with the possession of the land of another person, without any awful justification then he is said to commit the wrong of trespass to a person’s property. The interference however is direct or indirect, i.e. through some tangible objects. For instance: If P throws stone on the premises of Q, then he commits trespass to the land of Q indirectly or if P enters the restricted property of Q without his permission then he commits trespass to the land of Q directly. Even if a person is allowed to sit in a drawing room and if he enters the bedroom then he is said to commit trespass. Nevertheless, if a person lawfully invited to an area enters a prohibited area which is unmarked cannot be a trespasser. If a person enters another person’s property with his authority or consent then no trespass is said to be committed, but if the authority is revoked the person upholding the authority becomes a trespasser. For example; if A buys a ticket for a cinema hall to watch a movie for 2 hours and if he remains within the premises even beyond the permitted hours, A becomes a trespasser.



TRESPASS TO GOODS:

The direct physical interference with the goods in the possession of the plaintiff, without any lawful justification, constitutes the wrong trespass to goods of a person. The trespass to goods is said to be actionable per se, there is no need for proof of damages. But where there is no loss on behalf of the plaintiff, he is given nominal damages. A person in possession of goods who is directly interfered can bring a lawsuit against the defendant. However, a person may be in direct physical possession or may have their constructive possession such as through his servant or agent. Also, a person in possession can bring an action even though he is not the owner of those goods. For example: If A lends his car to B and C takes the car to drive, A can still bring an action against C because he was in possession of B’s car even though B was the real owner. Similarly, throwing stones on the car of a person, infecting one’s pet with some disease or chasing away one’s pet are the examples of trespass to goods.



DIFFERENCE BETWEEN TRESPASS AND NUISANCE:

Often there is a confusion that arises in the minds of readers between trespass and nuisance. Trespass as mentioned above is an interference with the possession of land without any lawful justification and the interference is through some tangible object but when the interference is not direct rather consequential, the act becomes a wrong of Nuisance. For example: if A plants a tree on B’s land, it is trespass. On the other hand, if A plants a tree on his own land and if its roots or branches escape on the land of neighbor, then it becomes a nuisance. Hence, there exists a thin line difference between the two. The consequences of an act therefore would determine which tort would take place.



CONCLUSION

Each one of us becomes a victim of Trespass uncountable times in a day itself. Therefore, it becomes significant to interpret and learn the concept of trespass in order to shun the dependency on the court so that it does not add insult to the injury on the justice system which is already dealing with numerous pending cases. Hence we shall always keep in mind the four essentials of trespass, i.e. the nature of the wrong of trespass, the nature of the possession of a person, the amount of the trespass, and the impact of the trespass.

Also, the trespass is divided into two halves; criminal and civil and hence it can be dealt with accordingly. The true meaning and concept of trespass needs to be understood in order to resolve the issues at hand and avoid trivial aspects from it to get ruled out.















REFERENCES

1. Bangia R.K, Law of Torts, 18th Edition 2005, Allahabad Law Agency Allahabad

2. Rattanlal Rancchhoddas, Dhirajlal Keshavlal Thakore, The Law of Torts, 25th edn 2006, Wadhwa Nagpur Publications

3. Winfield Tort, 7th edn

4.http://www.legalservicesindia.com/article/449/Trespass.html#:~:text=Trespass%20Trespass%20is%20an%20area%20of%20tort%20law,trespasses%3A%20threats%2C%20assault%2C%20battery%2C%20wounding%2C%20mayhem%2C%20and%20maiming.

60 views0 comments