Trespass in Tort by Sesa Gill at LexCliq

Trespass is an area of criminal law or tort law broadly divided into two groups:

 1.trespass to goods

Trespass to goods refers to the unintentional or intentional interference with the goods which are in the possession of other, without any lawful justification can be termed as trespass to goods. Unlike trespass to land trespass to goods are also wrong against the possession of goods. Example :Therefore if A gives his mobile for repairing to B for 2 days, then he can’t silently take his mobile out of B’s possession without his permission. If in case A takes his mobile without permission of B then A could be held liable under the trespass to goods, even if he is the real owner of the same.

2.Trespass to Land

Trespass to land refers to the wrongful interference of one over the property of another without any legal justification. It should be direct and physical. Trespass to land is more of a right over the possession of property rather than ownership of property. That is the person who is having actual possession over the property can even has a claim against the owner of that property for trespass to land.  As in the case of Graham vs. Peat the plaintiff was having a possession over the property by way of a lease which was void. But even after that, he was entitled to bring an action against the defendant for trespass. Who has entered the premises without any lawful justification, as any possession is a legal possession against the wrongdoer?

Defences for trespass

1.Consent of Plaintiff

There can be no case of trespass if there is the given consent from both the parties. Thus if A and B voluntarily agrees to play boxing match, then if while playing A hits B then cannot have any claim for trespass to the person. Similarly in the case of, Peters vs. Prince of Wales Theatre Ltd. the defendant employed the sprinkler system in the building for the prevention of fire in a building. Plaintiff and defendant were living in the same building. After some period of time there was some damage to the plaintiff, so she sued the defendant for trespass to land. It was held that the sprinkler system was benefiting both, therefore, it defendant couldn’t be held liable for the same.


There can be no case for trespass where it is necessary for the defendant to break the line set up by law against which there can be a case for trespass.

3.Self Defence

If at any point of time defendant found himself at such a risk that he can’t find any other help and his property or person is at its stake then in that situation the defendant can use force provided it should be reasonable.Thus if for example, if there is a theft at home then to save the property use of force is justified. The thief then can’t have the claim for assault or battery as because theft is the case of sheer intrusion of a person without any lawful justification and therefore the defendant at that time won’t be held liable.

4.Statutory authority

Acts which can be considered as trespass but it won’t if it is legally justified. That is, if the law permits some authorities to carry out the task of search and seizures then in that condition there can be no trespass against the authorities.

Remedies for trespass

1.Action for trespass

To maintain and action for trespass the plaintiff must prove that he was in possession, either actual or constructive , at the time of trespass .

2.Defense of property : 

 The person in possession must use force to keep out a trespasser, but if the trespasser has succeeded in obtaining possession the rightful owner must appeal to the law for assistance.

3.Expulsion of Trespasser :

The rightful owner of property is entitle to use reasonable force in  ejecting a he must not Resort to violence.

4.Distress damage feasant :

Anything animate or inanimate which is a wrongfully there on the land of another and is doing damage maybe distrain for such damage. This is a remedy which can be exercised without legal process by a retaining the cattle or thing doing damage as a pledge for the redress of the injury he has sustained. This right does not give a right of sale.

In India there is a special enactment namely the Cattle Trespass Act, which enables a person on whose land, cattle trespass, to take them to a cattle Pound. The owner can take back his cattle from the pound on payment of the pound fees to the Pound keeper.

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