• Legis Scriptor

Trespass to Land

Authored by - Prachi Aggarwal

Keywords - accidentally, without permission, substantial injury, trespass.


Trespass to land occurs when a person intentionally enters someone else’s property without permission. The only intent required for this claim is the intent to enter the property. So even if your neighbors accidentally cross from their property into your lot, they can be liable for trespass. A trespass can also occur if someone causes a physical item, like a golf ball, to enter your property. Substantial injury is not required.


Trespass might be committed either by an individual himself entering the land of another person or doing an equivalent through some material object e.g. throwing of stones to a different person’s land, driving nails into a wall, placing a ladder against the wall, allowing the diffusion of gas or invisible fumes, leaving debris upon the roof, allowing cattle to stray on another person’s land. It is, however, no trespass when there's no interference with the possession and the defendant has been merely bereft of certain facilities like gas and electricity.

Definition of Trespass to Land

Trespass to land means “interference with the possession of the land without justification.” Trespass is actionable intrinsically and therefore the plaintiff needn't prove any damage for an action of trespass. To constitute the incorrect of trespass neither force, nor unlawful intention, nor actual damage is important. “Every invasion of personal property, be it, however, minute, maybe a trespass”.

Trespass could also be committed:

1. by entering upon the land of the plaintiff

2. by remaining there, or

3. by doing an act affecting the only possession of the plaintiff, in each case without justification

In the case of Basely v Clarkson[1], when the defendant mowed his own land, he mistakenly crossed the boundary and mowed the land of his neighbor, believing it was his own land. The defendant’s plea of mistake in claiming trespass to land failed because his act of cutting grass was intentional even though he made a mistake as to where the boundary was. However, if the entry is proven to be involuntary then it is not a trespass

Trespass and Nuisance

Trespass is different from nuisance. In trespass, the inference with the possession is direct and through some tangible object. In nuisance, the interference isn't direct but consequential and there's impairment of the enjoyment of the property. To throw upon one’s neighbors’ premises may be wrong of trespass, but to permit stones from a ruinous chimney to strike those premises is wrong of the nuisance. Similarly, planting a tree on another’s land may be trespass but if an individual plant a tree over his land and its roots and branches escape on the land of the neighbor which will be a nuisance. Trespass is actionable intrinsically while nuisance is actionable only on proof of injury.

Ways during which Trespass may Occur

Trespass by the relation: One who has the right to possess is by a legal fiction deemed when he enters to possess been in possession from the instant when his right of entry accrued. Thus, if the owner of the property, wrongfully ousted of possession, manages to enter his premises, he will be deemed to possess been in possession even during the amount that he was actually out of possession and he can bring actions in trespass for wrongs to the property during the amount.

Trespass over airspace: A person has ownership of not only the earth’s surface but also of anything below or above that surface which is capable of being reduced into private ownership. Trespass over airspace may take place through aircraft, polluting gas, etc[2]. In India, the Aircraft Act of 1934 makes it a punishable offense for a person willfully to fly an aircraft in such a fashion to cause danger to a person or property in land or water or in air, but it contains no provision of absolute liability as within the English Acts.

In the case of Bernstein v Skyviews[3], when Bernstein sued the defendants in trespass for taking aerial photographs from hundreds of meters above the ground of his house, the issue of trespass into the airspace above the ground was in question. The Court held that at that height Bernstein had no reasonable use of airspace and the defendant was not liable for trespass on that ground.

In the case of Kelson v Imperial Tobacco Co. Ltd[4], an advertising sign was erected by the defendants over the plaintiff’s single-story shop projected into the airspace. The defendant argued that a superincumbent airspace invasion was not trespass, but a nuisance alone. The projection into the airspace of the plaintiff was held to be a trespass and not a mere nuisance, and a mandatory injunction was granted.

Continuing trespass: Every continuance of trespass may be a fresh trespass, in respect of which a replacement explanation for action arises from day to day as long because the trespass continues. One who built on the plaintiff’s land some buttresses to support a road and paid damages during an action for trespass was held liable in damages in a second action for not removing the buttresses after notice.

Defense to Trespass

Any justifiable entry or interference will negative liability for trespass. Justification by law, private defense, necessity, and Parental authority etc. are well recognized lawful defense for trespass. A policeman can enter a personal house through an open door late in the dark if he has reasonable grounds to believe that there's some disturbance there that needs immediate investigation. Similarly, as discussed earlier, a license may be a ground of justification.

Remedies for Trespass

1. Re-entry – The person entitled to possession can enter or re-enter the premises during a peaceable manner. Thus, a trespasser who, with the utilization of reasonable force is formed to go away the premises, cannot bring an action to bring an action against the one that was lawfully entitled to his land.

2. Action for Ejectment – an individual in lawful possession when dispossessed of certain immovable property without due course of law, can recover back property by filing a suit within 6 months of his dispossession. In such a suit, the title to the property isn't considered, as even an individual without due course of law. However, a mere trespasser cannot have recourse to the present provision, as a trespasser isn't an individual in possession. However, ultimately, the plaintiff must recover by the strength of his own title and not by the weakness of the title of the defendant. Further, if the evidence shows that some person is entitled to the land, the plaintiff ought to not succeed and therefore the defendant needs to be allowed to plead jus tertii (the title of the third person).

3. Action for Mense Profit – aside from the proper recovery of land by getting the trespasser ejected an individual who was wrongly dispossessed of his land can also claim compensation for the loss which he has suffered during the amount of dispossession. ‘Mense profits’ refers to the profits taken by the defendant during the amount of his occupancy.

4. Distress damage feasant – This right authorizes an individual in possession of land to seize the trespassing cattle or other chattels. He can detain them until compensation has been paid to him for the damage done.


Trespass is often faced by people innumerable times during a day, but what's important is to really understand the character of the trespassed act, property, loss and impact of it on the plaintiff. If the character of the act is itself implicational a wrongful incident, voluntarily undertaken to constrain the enjoyment of the proper to exclude from the personal property, then evaluation of all possible recourses to recoup the damage should be identified.

The four tests, when deciding trespass disputes, courts should evaluate the subsequent factors:

i. the character of the trespass;

ii. the character of the protected property;

iii. the quantity and substantiality of the trespass; and

iv. the impact of the trespass on the owner’s property interest.

It would help to uncover various facets and understand the size that trespass law is clutching in its circuitous surrounding so on loosen the screws and solve cases and situations in an efficacious manner truth meaning of every term must be understood to gauge trespass and resolve the cases by applying the relevant doctrines.


1)Diva Rai, Trespass to Land and Dispossession, IPLEADER (May 22, 2019),

2) Find Law’s Teamof legal writers and editors, Trespass to land, FINDLAW (December 03, 2018),


4) DR ASHOK JAIN, LAW OF TORTS, 290-295 (Ascent Publication, 1997) (2018)