TORT AGAINST PROPERTY

Trespass to Land, Trespass to Goods, Conversion, Passing off

Trespass Defined
• Trespass to land means interference with the possession of land
without lawful justification.
• Going beyond the purpose for which a person has entered certain
premises or crossing the boundary where he has no authority to go,
amounts to trespass.
• Thus, if a person, who is allowed to sit in a drawing-room, enters the
bedroom without any justification, the entry into bedroom is a
trespass.
How?
• Trespass could be committed either by a person himself entering the
land of another person or doing the same through some material
object,
• e.g., throwing of stones on another person's land, driving nails into
the wall, Allowing cattle to stray on another person's land is also a
trespass.
Direct interference
• In trespass, the interference with the possession is direct and through
some tangible object.
• If the interference is not direct but consequential, the wrong may be a
nuisance.
• To throw stones upon one's neighbour's premises is a wrong of trespass;
• To allow stones from a ruinous chimney to fall upon those premises is
the wrong of a nuisance.
• Similarly, planting a tree on another's land is a trespass but if a person
plants a tree over his land and its roots or branches escape on the land
of the neighbour, that will be a nuisance.
Wrong against possession rather than ownership
• 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, if his interference is wrongful.
Non availability of the defence of ‘Jus Tertii’
• The trespasser is not allowed to take the defence of "jus terti."
(showing that present possessor's right is illegitimate
• In other words, the trespasser cannot plead that as between some
third party and the person in possession, the title of the third party is
better.
• A person can succeed on the strength of his own title rather than on
the weakness of the title of the other party.
• Any possession is a legal possession against the wrongdoer.
Graham v. Peat (1801)
• Plaintiff was holding the land under a lease which was void
• but he was held entitled to bring an action for trespass against the
defendant who had entered that land without lawful justification.
No need to show damage
• Trespass is actionable per se and the plaintiff need not prove any
damage for an action of trespass.
• Every invasion of property, be it ever so minute, is a trespass.
• Neither use of force nor showing any unlawful intention on the part
of the defendant are required.
• Even an honest mistake on the part of the defendant may be no
excuse and a person may be liable for the trespass when he enters
upon the land of another person honestly believing it to be his own. \
Trespass ab initio
• When a person enters certain premises under the authority of some
law and after having entered there, abuses that authority by
committing some wrongful act there, he will be considered to be a
trespasser ab initio to that property.
• Even though he had originally lawfully entered there, the law
considers him to be a trespasser from the very beginning and
presumes that he had gone there with that wrongful purpose in mind.
• The plaintiff can, therefore, claim damages, not only for the wrongful
act which is subsequently done by the defendant but even in respect
of original entry which is now considered to be a trespass.
Positive act required
• In order that the entry of a person to certain premises is treated as
trespass ab initio non-feasance (ie., omission to do something) is not
enough, it is necessary that the defendant must have been guilty of
positive act of misfeasance (ie, doing of a wrongful act).
Six Carpenters' case 1610
• In Six Carpenters' case, six carpenters entered an inn and ordered
some wine and bread.
• After having taken the same, they refused to pay for that.
• They had done no act of misfeasance and mere non-payment being
only non-feasance,
• there was held to be no trespass ab initio.
Entry with a license
• Entering certain premises with the authority of the person in possession amounts
to a license and the defendant cannot be made liable for trespass.
• Section 52, Indian Easements Act, 1882 defines 'Licence' as under :
• Where one person grants to another, or to a definite number of other persons a
right to do, or continue to do, in or upon the immovable property of the grantor,
something which would, in the absence of such right, be unlawful, and such right
does not amount to an easement or an interest in property, the right is called a
licence.
• 'Permitting a person to cut a tree on one's land or permitting a person by the
cinema management to see a film are examples of licence.
• After the licence is revoked, the licensee becomes a trespasser on land and must
quit that place within a reasonable time.
Remedies for Trespass
• Use of reasonable force: If a person's possession had been disturbed
by a trespasser, he has a right to use reasonable force to get a
trespass vacated.
Action for ejectment
• Specific Relief Act, 1963 gives a speedy remedy to a person who has
been dispossessed of immovable property otherwise than in due
course of law.
• The relevant provision is as follows:
• If any person is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any person
claiming through him may, by suit recover possession thereof,
notwithstanding any other title that may be set up in such a suit. No
suit under this section shall be brought after the expiry of six months
from the date of dispossession.
Action for Mesne Profits
• Apart from the right of recovery of land by getting the trespasser
ejected, a person who was wrongfully dispossessed of his land may
also claim compensation for the loss which he has suffered during the
period of dispossession.
• An action to recover such compensation is known as an action for
mesne profits.
• If the plaintiff so likes, he may sue in ejectment and mesne profits in
the same action.
Distress Damage Feasant
• The right of distress damage feasant authorizes a person in
possession of land to seize the trespassing cattle or other chattels and
he can detain them until compensation has been paid to him for the
damage done.
• The idea is to force the owner of the chattel to pay compensation and
after the compensation has been paid, that chattel is to be returned.
Trespass to goods
• It consists in direct physical interference with the goods which are in
the plaintiff's possession, without any lawful justification.
• It may take numerous forms, such as throwing of stones on a car,
shooting birds, beating animals or infecting them with disease or
chasing animals to make them run away from their owners'
possession.
• Trespass to goods is actionable per se, that is, without the proof of
any damage.
• However, when the plaintiff has suffered no loss, he will get only
nominal damages.
It is a wrong against possession
• Any person whose possession of goods is directly interfered with, can bring
this action.
• A person may be either in the direct physical possession of the goods or may
have their constructive possession, e.g., as an owner of the goods or, he may
possess them through his servant or agent, as a carrier of goods or as some
other bailee.
• But when the owner has given up his possession, for instance, by pledging the
goods or giving them to another person under a hire-purchase agreement,
such a right cannot be exercised.
• Trespass being a wrong against possession rather than ownership, a person in
possession can maintain an action even though somebody else is the owner of
those goods.
No intention required
• Direct physical interference without lawful justification is a trespass.
• The wrong may be committed intentionally, negligently, or even by an
honest mistake.
• A person driving away the car, believing that to be his own, will be
liable in trespass to the person in possession even though the latter
does not have a good title to the same.
Kirk v. Gregory (1876) 1 Ex. D. 55
• On A's death, his sister-in-law removed some jewellery from the room
where his dead body was lying, to another room under a reasonable
but mistaken belief that the same was necessary for its safety.
• The jewellery was stolen from the place where it was now kept.
• In an action by the executors of A, A's sister-in-law was held liable for
trespass to the jewellery.
Without lawful justification
• When the interference is without any lawful justification, an action for
trespass lies.
• There is justification when the defendant has seized the plaintiff's
goods or cattle under the exercise of his right of distress damage
feasant.
• There is also a justification when the damage to another person's
goods is caused in exercise of the right of private defence.
Cresswell v. Sirl (1948) 1 KB 241
• The defendant's son shot the plaintiff's dog because the dog was
attacking his sheep and pigs.
• In an action by the plaintiff, the Court of Appeal held that it was for
the defendant to justify the killing and he could do the same by
proving that the dog was either attacking the animals or there was an
imminent apprehension of the attack and also that shooting was the
reasonable means of preventing the invasion.
DETINUE
When the defendant is wrongfully detaining the goods belonging to the
plaintiff and refuses to deliver the same on lawful demands, the
plaintiff can recover the same by bringing an action for detinue.
It is thus an action for the recovery of goods unlawfully detained by the
defendant.
If the original possession is lawful but subsequently the goods are
wrongfully detained, an action for detinue can be brought.
Thus, if a bailee refuses to deliver the goods after the bailment is
determined, he is liable in detinue.
• An action for detinue may be distinguished from trespass.
• In an action for detinue, the defendant assumes the possession of the
goods whereas there could be a trespass to the goods while the same
continue to be in the possession of the plaintiff.
'Detinue' abolished in England
• In England, by the passing of 'Torts (Interference with Goods) Act,
1977', Detinue has been abolished.’
• However, the tort of conversion has been extended to include those
situations also which were termed as 'detinue’.
• Where the goods are wrongfully detained by the defendant, the
plaintiff can still claim relief by way of order for the delivery of the
goods or payment of damages equivalent to the value of the goods
and consequential damages resulting from wrongful detention.
Position in India
• In India, although 'Detinue' as such has not been mentioned as a
wrong but similar action for recovery of specific movable property has
been recognized by the Specific Relief Act, 1963.
CONVERSION
• Conversion (also known as Trover) consists without any justification dealing with
the goods in such a manner that another person, who is entitled to immediate
use and possession of the same, is deprived of that.
• It is dealing with the goods in a manner which is inconsistent with the right of the
owner.
• The same must have been done with an intention on the part of the defendant to
deal with the goods in such a way that amounts to denial of plaintiff's right to it.
• Refusing to deliver the plaintiff's goods, putting them to one's own use or
consuming them, transferring the same to a third party, destroying them or
damaging them in a way that they lose their identity, or dealing with them in any
other manner which deprives the plaintiff to its use and possession are some of
the examples of the wrong.
Richardson v. Atkinson (1723)
• Defendant drew some wine out of the plaintiff's cask and mixed water
with the remainder to make good the deficiency.
• He was held liable for the conversion of the whole cask as he had
converted part of the contents by taking them away and the
remaining part by destroying their identity.
Wrongful intention not necessary
• A person dealing with the goods of another person in a wrongful way
does so at his own peril and it is no defence that he honestly believed
that he has a right to deal with the goods or he had no knowledge of
the owner's right in them. According to Lord Porter, "Conversion
consists in an act intentionally done inconsistent with the owner's
right, though the doer may not know of, or intend to challenge, the
property or possession of the true owner."
Roop Lal v. Union of India AIR 1972 J&K 22
• some military jawans found some firewood lying by the river side.
• They thought that the wood being unmarked, probably belonged to the
Government and they had every right to take away the same.
• They took away the wood in the military vehicle for camp fire and fuel.
• Ultimately, it turned out that the wood belonged to the plaintiff. In an
action against the Union of India for the tort of conversion committed by
its servant, it was held that the Union of India was liable to compensate
the plaintiff for the loss and the fact that the jawans did not intend to
commit the theft did not absolve the State from its liability.
Distinction between Trespass and Conversion

1.Trespass is basically a wrong done to the actual

possessor and therefore cannot be committed by a
person in possession. On the other hand, conversion is
a wrong to the person entitled to immediate possession.
2.The gist of the action in trespass is the force and direct
injury inflicted; in conversion, it is the deprivation of the
goods or their use
Defences for conversion
1.Lien, either general or particular – Demand and refusal are not considered as
evidence of conversion, if the party has a lien upon the chattel.
2.Right of stoppage in transit – This defence arises out of contract which is
related to the sale of goods.
3.Denial of plaintiff’s right of property (jus tertii) – Where the plaintiff sues
relying on his right only, or denial of possession. Where the plaintiff was in
possession of the goods at the time of the conversion, the defendant cannot set up
a plea of jus tertii (i.e. that a third party has superior title). Against a wrongdoer
possession is a good title. But when the plaintiff was not in possession but had
only the right to possess, the plea of jus terii can be set up by the defendant.
4.Distress – If the goods are taken under distress or under execution.
5.Sale in market overt – As per the English law, sale of goods in market overt
gives a good title to the purchaser. The purchaser cannot be sued for conversion if
he parts with the goods or refuses to give them up on demand; although the seller
can be sued if he has no title. This doctrine is not applicable in India
Passing off
• Passing off means that the defendant-
• a- by making a false representation,
• b- sells goods,
• c- with the intention to deceive the purchaser, and,
• d- the plaintiff believes that the goods being sold by are
of the defendant.
• Thank You