TITLE TRESPASS TO LAND INTRODUCTION Trespass to land means where a person directly enters upon anothers land without

t permission or without lawful justification. In trespass, the interference with the possession is direct and throught some tangible object. Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful. This tort is actionable per se without the need to prove damage. By contrast, nuisance is an indirect interference with another's use and enjoyment of land, and normally requires proof of damage to be actionable. THE WAYS IN WHICH TRESPASS MAY OCCUR 1. Entering upon land : when any person enter to land without any permission or refusing to leave when permission has been withdrawn. For example Basely v Clarkson (1681) 3 Lev 37 case.

2. Trespass to the airspace : In Kelsen v Imperial Tobacco Co [1957] 2 QB 334 case , D committed trespass by allowing an advertising board to project eight inches into P's property at ground level and another above ground level. 3. Trespass to the ground beneath the surface : In Bulli Coal Mining Co v Osborne [1899] AC 351 case, the Ds mined from their land through to the P's land. This was held to be trespass to the subsoil. POSSESSION OF LAND A person who forcibly enters onto land is guilty of a crime, even if that person is entitled to possession of the land. For example, a landlord who personally tries to eject a tenant creates a potentially explosive situation. To discourage such "self help," the states provide legal procedures for the rightful owner to use to recover his land. CONTINUING TRESPASS A trespass is continuing when the offending object remains on the property of the person entitled. In the case of Holmes v Wilson and others (1839) 10 A&E 503; Konskier v Goodman Ltd [1928] 1 KB 421). For example, in Holmes v Wilson and others (1839) the Ds built supports for a road on P's land. The Ds paid damages for the trespass,

but were held liable again in a further action for failing to remove the buttresses. MISTAKEN OR NEGLIGENT ENTRY Trespass to land is an intentional tort. However, intention for the act is required, not an intention to trespass. Consequently, deliberate entry is required and lack of knowledge as to trespass will not be a defence. In Conway v George Wimpey & Co [1951] 2 KB 266, 273. Mistaken entry In Basely v Clarkson (1681) 3 Lev 37 case. Involuntary entry In Smith v Stone (1647) Sty 65 case. Negligent entry In League against Cruel Sports v Scott case. DEFENCES In some cases a defendant is not liable for trespass even though she has intruded onto another's property. Public officials, for example, do not have any special right to trespass, but a housing inspector with a Search Warrant can enter someone's building whether the owner consents or not. A police officer can pursue a criminal across private property without liability for trespass. The police officer's defense to a claim of trespass is her lawful authority to enter.

 REMEDIES

Remedies are two types: 1. Extra judicial remedies : i) Re-entry ii) Action for ejectment iii) Action for mesne profit iv)Distress damage pheasant- to seize trespassing cattle until compensation has been paid. 2. Judicial remedies : They are mentioned in s. 297 and 441-462 of the Penal Code, 1860: