Torts: Trespass to Land

• The law of torts addresses harm to tangible property with intentional torts including trespass to land, trespass to chattels, and conversion.

Trespass to Land

• The interest protected by trespass to land is the right to exclusive possession.
• Trespass consists of entering land in the plaintiff's possession, remaining on it, or placing a material object upon it, without lawful justification. This also applies to the space above and below the surface of the land.
• All forms of trespass to land are actionable without proof of damage.
• Trespass to land is distinguished from private nuisance. Trespass involves physical invasion interfering with exclusive possession; nuisance involves interference with use or enjoyment.
• Trespass can occur on, below, or above the surface. Courts define "land" to include airspace and subsurface to the extent the plaintiff can beneficially use it e.g., stringing wires, low-altitude flights, tunneling.
• Mistake about the lawfulness of entry is not a defense if the defendant intended to enter that specific land. Intent to enter the land is sufficient for trespass. Transferred intent also applies.
• Anyone in actual or constructive possession can bring a trespass action, even without title. If no possessor exists, the true owner is presumed to have possession. Lessees can only recover to the extent of damage to their leasehold interest.
• The invasion must be legally caused by the defendant's act or something set in motion by the defendant. There needs to be physical invasion of the plaintiff's property by the defendant.
• Intent to cause physical invasion of plaintiff's property needs to be proven, with causation.
• Physical invasion is defined as the interest protected by this tort which is the interest in exclusive possession of land.
• Trespass can occur even without the defendant physically entering the land, such as by flooding it or throwing objects onto it.
• Trespass also exists when a defendant remains on the land after a lawful right of entry has expired.
• If no physical object enters the land and damage results from something like blasting concussions, it is generally treated as a nuisance or strict liability issue, not trespass.
• Damage is presumed with intentional torts meaning actual injury isn't essential for the cause of action.
• Example: Intentionally bouncing a tennis ball against a building is trespass, even if no damage results.

Trespass ab Initio

• One who enters land by legal authority and then abuses that authority is deemed a trespasser from the beginning which is known as trespass ab initio; this is an ancient doctrine.
• Under the doctrine if someone enters property under legal license and abuses it then they are a trespasser.
• Doctrine applies to other acts beyond land entry that, lacking legal authority, would constitute trespass to land, goods, or person. The Six Carpenters' case is the leading authority.
• Trespass ab initio has been rejected in most modern US cases and by the Restatement (Second) of Torts.
• The Restatement view holds that one who properly enters land but then commits a tort is liable only for that tortious act, not for the initial entry or prior lawful acts.

Dispossession of Land

• It consists of depriving someone having land possession. Occurs in two ways: wrongfully taking land possession, or wrongfully detaining possession after lawful right expires.
• The first case is also a trespass; the second is not. Both forms of dispossession share essential nature and remedies.
• One wrongfully dispossessed can sue for specific restitution via ejectment action. Originally called trespass in ejectment, it was only for leaseholders but later became available with Common Law Procedure Act 1852 and the Judicature Act 1873.

Jus Tertii and the Rule in Asher v. Whitlock

• In ejectment actions, the plaintiff must prove their right to land possession. Proving a better right than the defendant's is sufficient, even if inferior to a third party's right. Between two wrongful possessors, priority of possession is the better right.
• In ejectment, the defendant cannot defend himself by pleading jus tertii - the existence of a superior title in a third party that vested in some third person. In a dispute between A and B, C being the real owner is irrelevant.

Intentional Torts

• The main torts to property are against immovable and moveable property. Torts to property are divided into trespass to land, dispossession of land, injuries to servitudes, and torts against rights attached to land.
• Torts to property were considered under one heading without distinguishing according to the earlier classification of torts, torts to property were considered under one heading without distinguishing between intentional torts and those based on negligence or strict liability.
• Trespass to land and dispossession of land are usually intentional torts with remaining torts sometimes intentional.

Intentional Torts to Person

• Trespass is the father of torts derived from Latin trans and passus, initially very widely used for "wrong," encompassing "trespass to person," "trespass to goods," and "trespass to land". Now its only relevant to land alone. All three torts are also crimes.
• "Trespass to person" included assault, battery, and false imprisonment. Assault and battery nearly always occur together, sometimes with all three types present.
• The Pakistan Penal Code does not talk about "battery" but criminal force or "assault" and "false imprisonment" covered under "wrongful confinement."

Tort and Other Systems of Compensation

• A century ago, tort law was the main vehicle for compensation, now due to other systems, such as social security and insurance, has been relegated to a secondary role.

Tort and Trusts

• Trusts are normally considered part of the law of property, but the liability arising from them presents a slight similarity with torts. The difference is that what is paid is not by way of damages. Also, trusts arise from the jurisdiction of courts whereas torts came from the legal law.

Comparing Tort and Crime

• A tort is a species of civil injury, while a crime is a public offence, rights infringed in torts are of a private nature, while those in crimes are an infringement of public rights.
• The claimant is a private person in torts, but in crimes the claimant is the state. The remedy in torts is usually damages, while in crimes it is a penalty awarded by the state.
• A civil wrong gives rise to civil proceedings, while a crime gives rise to criminal proceedings with the civil wrongs are not alternative but concurrent depending on the case.

Law and Justice Commission

• The Law and Justice Commission has recommended that the Fatal Accidents Act be repealed, because the same issues are dealt with the qiṣāș and diyat provisions.

Consumer Law

• Consumer law has grown by leaps and bounds in recent years in India, and has also been remarkable in parts of Pakistan in the area of commercial malpractice. The student must at least be aware of the significance of is area.

Pollock’s definition of Tort

• This definition is explained to be an act or omission giving rise to civil remedy which is not an action of contract.
• The second definition is explained to occur as the breach of the act out of a personal relation related to harm in one of the following ways: an act without lawful justification, intended by the agent; action of harm is intended by the agent; not avoiding something that the party had to; a special duty for this type of act.

Underhill’s definition of tort

• Says there is no perfectly satisfactory definition of tort.

Bigelow’s definition of tort

• Is a breach of duty in which redressible by suit of damages in whether in intentional/ unintentional.