Trespass:

Trespass to land comes under the law of Tort .Basically, the law of tort concerns itself with providing remedies to people who find themselves hurt/harmed by the conduct of other people.  Trespass to land is one of the oldest actions known to the common law (although it no longer is a crime at common law), and can be defined as an unauthorized interference with a person’s possession of land.  It is the direct invasion of possession which is actionable, thus, once the invasion has been proved, it is for the defendant (the person committing the invasion) to justify his actions.  There has to be an intention to interfere with the right of possession, thus involuntary actions are not actionable.  Trespass to land does not require proof of damage for it to be actionable.  Thus, the defendant cannot claim that he entered the land reasonably and/or with due care.

What are the types of Trespass?

The most common form of trespass is entry by the defendant on to the plaintiff’s land.  However, there are other forms of trespass, such as placing objects on the land, or even placing objects that are in contact with the plaintiff’s property or land.  Where someone was lawfully on the land, either by exercising a right of entry, or because he had permission to be on the land, that person will be committing trespass if he abuses the right or permission by acting outside the purpose for which he was granted the right/permission.  A trespass will also be committed if he remains on the land after the right/permission has expired.

Who can sue?

As trespass of land is a wrong against the possession, not ownership, of the land, only the person who has exclusive possession of the land in question can sue.  Thus, possession refers to occupation or physical control of the land - use of the land without possession is not sufficient; nor is ownership of the land without possession. 

Defenses to trespass

Subject to the defenses which we shall now address, it is quite simple to bring a claim for trespass; all that is needed is to show that there has been a direct and unjustifiable interference with the land and that the individual bringing the claim is in possession of the land.

There are three main defenses to trespass and they are as follows:

  1. Necessity: In order to assume the defense of necessity there must be an actual or reasonably perceived danger in relation to the course of action taken by the ‘trespasser’. A common example is if one person swings their car in

order to avoid a crash and ends up on somebody else’s land. In theory they are trespassing as they are making a direct and unjustifiable interference with the land; they may also not have been in danger from the oncoming vehicle. However, there was certainly a perceived danger and so there will be no trespass. (However, it may be that if they caused damage there will be a different type of claim.)

  2. License: If you invite somebody onto your land then you have given them an implied license and they are not therefore a trespasser. There are certain times when you will have given someone permission to enter your land, but only a certain part of it, and for a certain reason. Therefore, in these cases a claim for trespass is still possible.

  3. Legal justification: A clear example of legal justification is when a police officer enters your land under an appropriate warrant. It is quite clear that certain emergency services should be allowed onto your land to carry out activities which are in the public good.

Types of Trespass:

There are three main types of trespassing; those are as follows:

Trespass to person : It must be a direct and intentional act. The scope of tort comprises:Assault:  It is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harmBattery: The intentional and direct application of force to another person.False imprisonment: It happens when depriving the claimant of freedom of movement, without a lawful justification for doing so.

Trespass to land: It is the intentional and unauthorized invasion of real property.

Trespass to chattel : It is an intentional interference with a plaintiff's right of possession to personal property. This may occur if a defendant damages the property or deprives the plaintiff of possession of the property.

Nuisance:

It is a legal action to redress harm arising from the use of one's property. There are two types of nuisance: private and public nuisance:

Private nuisance: It is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation

Public nuisance: it is an activity or thing that affects the health, safety, or morals of a community. Also, it is the interference with the enjoyment of property whose use is shared by the public or large number or public. Examples: obstruction of the highways or obstruction of a waterway.

Negligence:

A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.  The behavior usually consists of actions, but can also consist of omissions when there is some duty to act.

Elements of a negligence case:

In order to prove that the defendant was negligent and therefore liable for your injuries, you must prove all of the "elements." For instance, one of the elements is "damages," meaning the plaintiff must have suffered damages (injuries, loss, etc.) in order for the defendant to be held liable. So even if you can prove that the defendant indeed acted negligently, you may not collect damages if you didn't suffer any injuries.

Juries are instructed to compare the facts, testimony, and evidence with the following elements before reaching a verdict:

1) Duty: The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.

2)Breach of duty: A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.

3) Fact: Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's actions actually caused the plaintiff's injury. This is often referred to as "but-for" causation. In other words, but for the defendant's

actions, the plaintiff's injury would not have occurred. The child injured by the defendant who tossed a bag of grain onto a truck could prove this element by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.

4)Cause: Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's damages.

5) Damages: A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.