Trespass : A civil wrong

Trespass is one of the ancient forms of action that arose under the common law of England as early as the 13th
century. It was considered a breach of the king’s peace for which the wrong doer might be summoned before the king`s court to respond to a civil proceeding from the harmed caused. The courts were concerned with punishing the trespasser rather than compensating the landowners and from the beginning a defendant convicted of trespass was fined; a defendant who could not pay was imprisonment. The fine in these criminal proceedings developed into an award of damages to the plaintiff and this change marked the beginning of tort action under the common law which has eventually become operative in Nigeria by virtue of Section 45 of the Interpretation Act. Today, the law of trespass has developed to become an aspect of tort with several branches of its own.

TYPES OF TRESPASS :

TRESPASS AGAINST IMMOVABLE PROPERTY LIKE LAND

Legal maxim ‘Quare clausum fregit’ defines land as, “Land includes not only the surface and any buildings on it but also the airspace and subsoil, in so far as these are vested on the plaintiff. The action of trespass to land penalizing direct interference with other people’s land.”
Trespass is mainly a wrong against possession and is available at times against the owner himself. Court in the case opined that “The correct position in law may, in our opinion, be slated thus in order to establish that the entry on the property was with the intent to annoy, intimate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering: that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry”.
No one has the right to dispossess the trespasser if he is in a settled possession of a property and he can’t be evicted unless due process of law is followed. The possession, which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. Under the doctrine of prescriptive easements, for example, a property owner loses the absolute right to exclude (all other persons from taking possession of his land) when a nonowner has used that land openly, peaceably, continuously, and under a claim of right ad- verse to the owner for a period set forth by a particular state (known as the prescription period). It was held by the High Court of Bombay in case that a rightful owner who dispossesses another cannot be treated as a trespasser except as provided by Section 9 of the Specific Relief Act, 187.
Trespass may also arise upon the easement of one person upon the land of another. For example, if A grants B a right to pass freely across A’s land, then A would trespass upon B’s easement by erecting a locked gate or otherwise blocking B’s rightful access. In some jurisdictions trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass.
The maxim “cuius est solum, eius est usque ad coelum et ad infernos” (whoever owns the land owns it all the way to the heavens and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). Landowners may not put up structures to prevent this. The courts have been more lenient with underground trespass.

There may be regulations that hold a trespasser to a higher duty of care, such as strict liability for timber trespass (removing trees beyond a permitted boundary), which is a type of trespass to chattels as a result of a trespass to land.
Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner’s quiet enjoyment of his rights, there may be an action for nuisance, as where a disagreeable aroma or noise from A drifts across the land of B.

Trespass ab initio is when a person is granted access to land but then abuses that access. The entry to the land is considered to have been a trespass from the beginning. This only applies to access given by law, not to access given by a person.

TRESPASS TO A PERSON

TRESPASS TO PERSON IS A TORT WHICH IS FREQUENTLY
COMMITTED IN EVERYDAY LIFE. IT IS BASICALLY
UNREASONABLE INTERFERENCE WITH BODY OF A PERSON
WHICH CAN BE COMMITTED EITHER BY CAUSING ACTUAL HARM OR BY JUST CAUSING AN APPREHENSION OF FORCE.

Critical Analysis on The Concept of Trespass To Person

Trespass to person is a tort which is frequently committed in everyday life. It is basically unreasonable interference with body of a person which can be committed either by causing actual harm or by just causing an apprehension of force.

The tort of trespass to person has developed as it is today is a result of many changes and modifications. In early English law, a physical interference with the person was given special protection, partly to avoid the unhappy consequences of people taking the law into their own hands by revenge attacks. Untill the abolition of the old forms of action in the 19th century; direct attacks upon the person were protected by the action of trespass, which required no proof of damage. Indirect interference with the person was protected by the action on the case, which did require proof of damage.

Today, the basic position is that direct and intentional acts of interference are still dealt with by the tort of trespass, while indirect and unintentional acts fall under the tort of negligence. However, the situation is more complex than this suggests and some authorities suggest that even in trespass the claimant must now establish intention or negligence in addition to the act of interference.

This appears to suggest that there is a form of negligent trespass, which is almost a contradiction in terms.

Trespass To Person:
Definition:
Interference, however slight with a person’s elementary civil right to security of person, and self-determination in relation to his own body, constitutes trespass to person. Trespass may be done intentionally, deliberately or negligently. The fundamental principle plain and incontestable law is that every person’s body is inviolate.

TRESPASS TO PERSON MAY BE CATEGORISED AS:

1. Assault, which is “any act of such a nature as to excite an apprehension of battery”;
2. Battery, ” intentional and unpermitted contact with the plaintiff’s person or anything attached to it and practically identified with it”.
3. False imprisonment, the “unlawful obstruction or deprivation of freedom from restraint of movement.”

Assault
• In everyday parlance assault is taken to mean physical contact. In tort, however, an assault occurs when a person apprehends immediate and unlawful physical contact due to the intentional actions of another. Fearing you are about to be physically attacked, therefore, makes you the victim of an assault.
• It is also necessary that an attack can actually take place. If an attack is impossible, then despite a person’s apprehension of physical contact, there can be no assault – for example, a person waving a stick and chasing another person who is driving away in a car would not be an assault. It is also generally thought that words alone cannot constitute an assault, but if accompanied by threatening behaviour the tort may have been committed.
Battery
• If the physical contact that is apprehended in an assault actually takes place, the tort of battery has been committed. It is not necessary for the physical contact to cause any injury or permanent damage to the victim, or even be intended to do so. The only intention required is that of making physical contact.
• It is also not necessary for the wrongdoer to actually touch the victim, so battery may be committed by throwing stones at someone or spitting on them.
False imprisonment
• False imprisonment is the unlawful restraint of a person which restricts that person’s freedom of movement. The victim need not be physically restrained from moving. It is sufficient if they are prevented from choosing to go where they please, even for a short time. This includes being intimidated or ordered to stay somewhere. A person can also be falsely imprisoned even if they have a means of escape but it is unreasonable for them to take it; for example, if they are in a first floor room with only a window as a way out.
• False imprisonment can also be committed if the victim is unaware they are being restrained, but it must be a fact that they are being restrained.

TRESPASS TO GOODS

Trespass de bonis asportatis, affords a remedy where there has been a direct interference with goods in the claimant’s possession at the time of the trespass, whether that be by taking the goods from him or damaging the goods without removing them.Trespass and conversion deal with intentional interference with goods. Where goods are lost or damaged as a result of the defendant’s breach of a duty of care, an action may lie in negligence.

TRESPASS TO GOODS:

Trespass to goods is an infringement of the right of possession not of ownership. There are three types of torts relating to goods
• Trespass to goods
• Conversion
• Detinue
Prof. Salmond: “Trespass to goods consists in committing without lawful justification any act of direct physical interference with a chattel in the possession of another person.”
Pollock: “Trespass to goods may be committed by taking possession of them or by any other act in itself immediately injurious to the goods in respect of the possessor’s interest as by killing, beating or chasing animals, or defacing a work of art.”
Two forms – it may assume:
a. Taking the thing away from the plaintiffs possession, when it is termed aspiration (removal, seizure etc.)
i. this would amount a crime of theft ii. To robbery if it was also forcible.
b. Different application of force- damage
i. killing or injuring of an animal ii. Defacing a work of art.
Damage is not always essential. Even the slightest application of force like touching is wrongful.
Essentials of trespass to goods:

1. Possession (Servant and master; trustee; administrator)
2. A person in possession, though not the owner can sue.
3. Jus tertii (Title of third person).
   Self defences:
   • Rightful claim
   • Authority of law
   • Consent
   • Negligence of the plaintiff
   • Reception of goods.

Trespass can be faced by people innumerable times in a day, but what is important is to truly understand the nature of trespassed act, property, loss and impact of it on the plaintiff. If the nature of the act is itself suggestive of a wrongful incident, voluntarily undertaken to constrain the enjoyment of the right to exclude from the private 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 following factors: the nature and character of the trespass; the nature of the protected property; the amount and substantiality of the trespass; and the impact of the trespass on the owner’s property interest.
It would help to uncover various facets and understand the dimensions that trespass law is clutching in its circuitous surrounding so as to loosen the screws and solve cases and situations in an efficacious manner. The true meaning of each term needs to be understood to evaluate trespass and resolve the cases by applying the relevant doctrines.