Trespass – Law of Tort


In the present era, everyone wants to preserve his or her body and property from external intrusion and from another’s wrongful intention to harm or destroy it. As the time is changing and so is the technology and competition, there is an increase in the mala fide intention of people causing wrongful harm to others. Therefore to apprehend such large sections of public there is a need to develop such laws to protect the individual’s property and body.

There are many instances where the wrongful intrusion of a person over others property and body results in many harms either public or private. Therefore to save common people from such harm there is a common term given that is Trespass.

Trespass can be termed as the wrongful act done directly and intentionally to cause the harm to another property can be termed as trespass. It is of two kinds of civil and criminal wrong. It is so because it can have two different kinds of injuries i.e. it can lead to the violation of human rights which leads to the damages, while it can also lead to punishment if there is any physical attack.

Therefore, the term trespass can be termed as an action exceeding the limit so made by laws. It is an act intentionally directed for an unreasonable interference with the one’s property and person’s.The term intentionally here implies that any wrongful act done voluntarily. Furthermore, it is a necessary component of trespass to prove the intention of the party involved.

Types of Trespass

There are different types of trespass:

1. Trespass to person

Trespass to person refers to the case where there is the wrongful apprehension of a body or person. That is, there is a wrongful apprehension of one’s body or person causing harm or injury done with malafide intention. There are three types of trespass.

a. Assault

It refers to causing illegal apprehension of fear in the mind of other person causing him to suffer injury can be termed an assault. For proving assault there is no need for having suffered any physical harm. For example, if A takes out the gun pretending it to be loaded, in front of B. B in the apprehension of fear suffers shock. Then A would be held liable for assault on B, even if the gun wasn’t loaded. However, it is important to consider the foreseeability of a person that is he should have apprehended the fear due to the act is done and not because he thought. That is, if A holds a gun behind B, so be won’t be able to be apprehended because of that and therefore A won’t be liable for any assault.

In the case of R vs. Constanza[1] the defendant sent 800 threatening letters to the plaintiff, wrote offensive words on her front door. This leads her to suffer from clinical depression. It was held that the defendant was liable for assault and was punished under the Offences against the Person Act 1861.

Sec 351 of I.P.C. also talks about the criminal liability of Assault.

b. Battery

The use of force against someone in such a manner that it results in having a physical injury can be termed as a battery. It can be direct like A slaps B then it is direct while the other is indirectly like pulling off a chair while the other is sitting. What is important in this is that there should be physical contact between the persons. Sec 350 of I.P.C. holds the person criminally liable for battery.

However, the use of force against a trespasser is justified and the person won’t be held liable for any action. As in case of, Pratap Daji vs. B.B. & C.I. Ry. here the plaintiff entered in a carriage of defendant’s railway but had forgotten to purchase a ticket for his travel. On one of the stops of the carriage, he tried to purchase the ticket but didn’t get any. At another place, he was asked for the ticket which he didn’t have and therefore was asked to get out of the carriage. He refused to do so. On his refusal, the defendant used force to get him out of the carriage. He bought an action against the defendant for use of force. It was held that the defendant was not liable, as he used force against the person who was not having a ticket and therefore was a trespasser, and therefore he couldn’t be held liable.

c. False Imprisonment

False imprisonment refers to restraining the movement of a person for however short interval it may, without any lawful justification.

For this wrong to be proven imprisonment in original sense is not required. The thing which is important is that the person is deprived of his personal freedom, either by being confined within the four walls or by restraining him from moving out of the particular place. The essential requirement for this is:

– There should be a total restraint on the liberty of a person

– And, there should not be any lawful justification for the same.

2. Trespass to Land

Trespass to land refers to the wrongful interference of one over the property of another without any legal justification. It should be direct and physical. Trespass to land is more of a right over the possession of property rather than ownership of property. That is the person who is having actual possession over the property can even has a claim against the owner of that property for trespass to land.  As in the case of Graham vs. Peat[2] the plaintiff was having a possession over the property by way of a lease which was void. But even after that, he was entitled to bring an action against the defendant for trespass. Who has entered the premises without any lawful justification, as any possession is a legal possession against the wrongdoer?

3. Trespass to goods

Trespass to goods refers to the unintentional or intentional interference with the goods which are in the possession of other, without any lawful justification can be termed as trespass to goods. Unlike trespass to land trespass to goods are also wrong against the possession of goods. Therefore if A gives his watch for repairing to B for 2 days, then he can’t silently take his watch out of B’s possession without his permission. If in case A takes his watch without permission of B then A could be held liable under the trespass to goods, even if he is the real owner of the same.


1. Consent of Plaintiff

There can be no case of trespass if there is the given consent from both the parties. Thus if A and B voluntarily agrees to play boxing match, then if while playing A hits B then cannot have any claim for trespass to the person. Similarly in the case of, Peters vs. Prince of Wales Theatre Ltd.[3] the defendant employed the sprinkler system in the building for the prevention of fire in a building. Plaintiff and defendant were living in the same building. After some period of time there was some damage to the plaintiff, so she sued the defendant for trespass to land. It was held that the sprinkler system was benefiting both, therefore, it defendant couldn’t be held liable for the same.

2. Necessity

There can be no case for trespass where it is necessary for the defendant to break the line set up by law against which there can be a case for trespass.

3. Self Defence

If at any point of time defendant found himself at such a risk that he can’t find any other help and his property or person is at its stake then in that situation the defendant can use force provided it should be reasonable.Thus if for example, if there is a theft at home then to save the property use of force is justified. The thief then can’t have the claim for assault or battery as because theft is the case of sheer intrusion of a person without any lawful justification and therefore the defendant at that time won’t be held liable.

4. Statutory authority

Acts which can be considered as trespass but it won’t if it is legally justified. That is, if the law permits some authorities to carry out the task of search and seizures then in that condition there can be no trespass against the authorities. Like in the case of Elias vs. Pasmore[4]in this the police lawfully enter at plaintiff’s house, to arrest a man. From there they also took some documents some of which were unlawfully taken. It was held that entering the house couldn’t constitute trespass but taking away documents constitutes trespass to goods and therefore the police were held liable.


  • Kedar vs. K.A. Alagarswami[5]

In this case, the Madras high court held that putting handcuffs to an undertrial prisoner and then tying him like a dangerous animal with the window in a hospital during his medical treatment can be termed as the use of unjustifiable force. And therefore the police should be held liable for the same for trespass to the person.

  • Stephens vs. Myers[6]

In this case, the plaintiff was the Chairman of Parish meeting, defendant was also present there, but was sitting at a gap of 7 to 8 persons on the same table. In the course of a meeting, there was a heated argument, the defendant had been vociferous and he interrupted the proceeding of the meeting. It was decided by a large majority that the defendant should be expelled from the meeting. Hence the defendant advanced towards the chairman with his clenched fist saying he would rather pull the chair off then turned out of a room, but was stopped by the churchwarden, who sat next to the chairman. It was held that he was liable for assault.

  • Herring vs. Boyle[7]

It is the case for false imprisonment, where it has been held the knowledge of the plaintiff is essential. In this case, the schoolmaster wrongfully refused the child to go with his mother. The recent told for such restraint was that the mother was told to pay the bus fee due to her. The conversation between both was unknown to the child and he was not cognizant of the restraint. It was held that the refusal to the mother in boy’s absence, and without his being cognizant of restraint, could not amount to false imprisonment.

  • Madhav Vithal Kudwa vs. Madhavdas Vallabhdas[8]

In this case, the plaintiff was the landlord of the plaintiff. The tenant was living on the first floor of the building;he used to park his car at the compound of the plaintiff’s building. Therefore the plaintiff pleaded before the court, that the parking of the car at his compound without his permission was trespass and therefore injunction to restrain the defendant from parking his vehicle to be granted. The court held that parking of vehicle didn’t cause any trespass. As the building was multi-storeyed therefore he could use the compound for parking provided that there should be no inconvenience to anyone. 

  • Kirk vs. Gregory[9]

This is the case of direct interference with a person’s goods. In this case, on the death of A, A’s sister-in-law removed the jewelry which was kept there where the body of A was kept. With good intention and with mistaken belief for the safety of jewelry, she moved it and kept it in another room, from where it was stolen. A’s executer, therefore, bought suit against the sister-in-law. It was held that the sister-in-law was liable for trespass to jewelry.

  • Cresswell vs. Sirl (1948) 1 K.B. 241: (1948) 2 All. E.R. 730[10]

In this case the son of defendant shot plaintiff’s dog, the reason that was told was that because the dog was attacking his pigs and sheep. The plaintiff then brought suit against the defendant. It was held in Court of Appeal that the dog was either attacking animals or there was an imminent apprehension of attacking and also there was no other way to save animals other than shooting to save the animal from such intervention, and therefore the defendant couldn’t be held liable for killing.

Frequently Asked Questions

  • Define trespass?

An unreasonable interference of one over the rights of another’s property or person without any lawful justification and without the person’s knowledge can be termed as trespass. Thus if A enters the house of B, without his permission and his knowledge even though there was no wrong intention on his part but then too he can be liable for trespass.  

  • What is trespass to person?

Trespass to a person can be defined as direct or intentional interference over the person’s body, causing him to suffer harm or injury either mental or physical can be termed as trespass to the person. Thus where A makes such a gesture of killing B, which he never went to do that but due to which B suffers mental shock, then A can be held liable for assault in trespass to the person

  • Is trespass to land is a crime?

Trespass to land refers to the physical interference of someone over the property of other who is in possession of it and the act being done negligently or with intention without any legal justification leads to commits an offense. It can be both civil and criminal depending on the nature of the act being done. Like where a person negligently enters the premises of other can be liable for civil trespass, but where the person enters the premises of other with the wrongful intention of committing theft then he can be held liable for criminal trespass.

  • Is nuisance is trespass to land?

No, nuisance can’t be termed as trespass to land. As trespass to land refers to unlawful interference with the possession one’s land done directly and through some tangible object, but if that interference is not direct but consequential then that wrong can be termed as a nuisance. Therefore it can be said that there is a thin line difference between the two.

  • What is trespass to goods?

Trespass to goods refers to a physical interference of goods which are in the possession of someone else, without any lawful justification. Thus, where if I gave my watch to someone for repairing then until that person has lawful possession of it I can’t take my watch back without lawful justification and if I do so I will be held liable for trespass to goods.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by – Vedanta Yadav


[1][1997] 2 Cr App Rep 492.

[2] (1801) 1 East 244.

[3] (943) KB 73.

[4][1934]2 KB 164.

[5] A.I.R. 1965 Mad. 438.

[6] (1830) 4C and P. 349: 172 E.R. 735.

[7] 149 E.R. 1126(1834)91 Cr. M. and R. 377.

[8] A.I.R. 1979 Bom. 49.

[9] (1876) 1 Ex. D. 55.

[10] (1948) 1 K.B. 241: (1948) 2 All. E.R. 730.

Sakshi Raje
I am Sakshi Raje from M.S. University Vadodara, pursuing BALLB (hons.). Tort law and it's interpretations in legal world are way too interesting according to me. I am attracted towards it because of its interpretation done differently according to the needs of society. Apart from this I am fond of travelling and tracking different places.