Torts against property

1. Trespass to land

Trespass to land is the unjustifiable and direct interference with the possession of land of another. Like all trespass, it is actionable per se. It can be committed by:

• Entry on the land, however slight: putting a hand through a window, or stepping a foot over the boundary.
• Remaining on the land after the permission to be there has ended. A licensee who is asked to leave and refuses becomes a trespasser after a reasonable time to go.
• Placing an object on or against the land: throwing stones on it, leaning a ladder against a wall, or letting cattle stray onto it.

Land includes the surface, things fixed to it, the subsoil, and the airspace to a reasonable height. In Kelsen v. Imperial Tobacco Co. (1957), an advertising sign projecting eight inches over the plaintiff's shop was a trespass to his airspace. In Bernstein v. Skyviews & General Ltd. (1978), an aircraft flying high over land to photograph a house was not a trespass, because the owner's rights extend only to the height necessary for the ordinary use and enjoyment of the land.

Who can sue. The person in possession. Mere ownership without possession is not enough, though once the owner re-enters, possession relates back (trespass by relation). A person with title who is out of possession can recover the land by a suit for possession under ss.5–6 of the Specific Relief Act, 1963, and mesne profits.

Defences. Licence (leave and licence), lawful authority (police with a search warrant, officials entering under statute), necessity (entering to put out a fire), re-entry on land by the person entitled using no more than reasonable force, and the right to abate a nuisance.

2. Trespass ab initio

When a person enters land under an authority given by law (not by the occupier's permission) and later abuses that authority by a positive wrongful act, he is treated as a trespasser from the moment of entry. This is trespass ab initio.

The rule was laid down in the Six Carpenters' Case (1610). Six carpenters entered an inn, as the public may by law, and ordered bread and wine. They paid for some and then refused to pay for more. They were held not to be trespassers ab initio, because refusing to pay is a nonfeasance (an omission), and the rule applies only to a misfeasance (a positive act). Had they damaged the inn, the position would have been different.

Three conditions follow: (i) entry under authority of law, not licence of the party; (ii) a later abuse of that authority; (iii) the abuse must be a positive act. The doctrine has been criticised and narrowed in England (Chic Fashions (West Wales) Ltd. v. Jones, 1968), but it remains standard examination material, and it still explains why an officer who enters lawfully to search and then seizes goods he had no power to seize may be liable for the entry too.

3. Trespass to goods

Trespass to goods is a direct and wrongful interference with goods in the possession of another. Examples: moving, touching, damaging or beating an animal, scratching a car, taking goods away. No damage need be shown. In Kirk v. Gregory (1876), a woman moved some jewellery belonging to her dead brother-in-law from one room to another, believing it safer there. It was stolen. She was liable in trespass, though only nominal damages were awarded, because moving goods without authority is itself a trespass. Mistake as to ownership is no defence.

4. Conversion

Conversion is a wilful dealing with goods inconsistent with the right of the person entitled to them, so as to deny his title or his right to possession. It is a more serious wrong than trespass. Conversion may be by:

• wrongfully taking goods with the intention of keeping them;
• wrongfully selling, pledging or delivering them to someone else;
• destroying them or altering their nature;
• wrongfully refusing to return them on demand;
• using them as one's own.

Innocence is no defence. In Hollins v. Fowler (1875), a broker who bought cotton from a fraudster and resold it, honestly and in the ordinary course of business, was liable to the true owner in conversion. The line between trespass and conversion is shown by Fouldes v. Willoughby (1841): a ferryman who put the plaintiff's horses ashore to get him off the boat committed at most a trespass, not a conversion, because he did not deny the plaintiff's title to them.

The remedy is damages equal to the full value of the goods at the time of conversion; on payment, title passes to the defendant. The criminal analogue is dishonest misappropriation under s.314 of the Bharatiya Nyaya Sanhita, 2023 (old s.403 IPC), or theft under s.303 (old s.378 IPC), where the taking is dishonest.

5. Detinue

Detinue is the wrongful detention of goods after a demand for their return by the person entitled to immediate possession. Its essentials: the plaintiff's right to immediate possession, a demand, and the defendant's refusal. The distinctive remedy is return of the specific goods, or their value, with damages for the detention. This makes detinue the right action for goods with special value: an heirloom, a manuscript, a title deed.

England abolished detinue by the Torts (Interference with Goods) Act, 1977, folding it into conversion. In India the remedy is statutory: a person entitled to possession of specific movable property may recover it under s.7 of the Specific Relief Act, 1963, and under s.8 a person in possession who is not the owner can be compelled to deliver the article where compensation in money would not be adequate relief.

6. Distinguishing them

• Trespass to goods protects possession; any direct interference is enough; damages may be nominal.
• Conversion protects title and the right to possess; requires a dealing that denies the owner's right; damages are the full value.
• Detinue protects the right to immediate possession; requires demand and refusal; the remedy can be return of the goods themselves.

One act can be all three. If A takes B's watch (trespass), sells it to C (conversion), and C refuses to return it after B demands it (detinue against C, and conversion), B may choose the action that gives him the remedy he wants.

7. Problem

A municipal inspector enters a restaurant under statutory power to inspect the kitchen. He finishes the inspection and then, without any power to do so, takes away the owner's cash box, saying he will return it after the owner pays a disputed fee.

Issue. Is the inspector a trespasser ab initio, and what is the owner's remedy for the cash box?

Law. A person who enters under authority of law and later commits a positive wrongful act in abuse of it is a trespasser from the beginning (Six Carpenters' Case). Taking goods to hold them against the owner's will is conversion, and refusal to return them on demand is detinue.

Application. The entry was under statutory authority, not the owner's licence. Taking the cash box is a positive act, not a mere omission, and is beyond his powers.

Conclusion. The inspector is a trespasser ab initio, liable for the entry as well. The owner may sue for conversion (value of the box and contents) or recover the box itself under s.7 of the Specific Relief Act, 1963. The municipality may be vicariously liable.

How this is examined

A 10-mark question: “Explain trespass to land. When is a person a trespasser ab initio?” or “Distinguish trespass to goods, conversion and detinue.” Short notes on “Trespass ab initio” and “Conversion” are frequent. Always use the Six Carpenters' Case and its misfeasance / nonfeasance point.