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torts:defences-trespass

Defences to an action for trespass

The justifications or defences to an action for trespass are;

  1. Prescription.
  2. Leave and license.
  3. Authority of Law.
    1. Execution of legal process.
    2. Distress.
    3. Distress damage feasant.
  4. Acts of Necessity.
  5. Self-defence.
  6. Re-entry on land.
  7. Retaking of goods or cattle.
  8. Abating a nuisance.
  9. Special property or Easement.
  10. Liberum tenementum.

Prescription

A defendant may plead that he was justified by reason of prescription, as by showing a right of common, or right of way over the land; or that his right of way was wrong fully obstructed by the plaintiff, and the trespass was necessary to avoid it.1)

Leave and license

A license is a mere permission to do an act, which if done without that permission would, with respect to land, be a trespass quare clausum fregit.

A dispensation or license properly passeth no interest,, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful.2) License may be express or implied. Entry to a shop or public house is a case of implied license. If the defendant relies upon a plea of leave and license, he must prove, either an express permission from the plaintiff to the defendant to come upon the land, or circumstances from which such permission may fairly be implied.3)

The license to be a good defence, must be from one having authority to give such and it must be co-extensive with the acts complained of, or the plaintiff may recover for the acts in excess.4) A license obtained by wilful misrepresentation and deceit is a mere nullity, and will not justify, or excuse a trespass by a defendant who was a party to the misrepresentation.5) There will be no license to do what is illegal.6)

Authority of law

An officer may enter into a house to serve a legal process. It is lawful to enter upon the house or land of an execution debtor in order to search for and seize his person or property, according to the nature of the execution. But a special sanctity attaches to the dwelling-house, which is an Englishman's castle, and may not be broken open, even after demand of admittance made and refused. In many of the old cases it is said that the sheriff may only enter if the door be open, and accordingly it is laid down that he is a trespasser if he goes in by lifting the latch7), but this has been questioned. He may enter by lifting a window partially open. Any outbuilding not adjoining or being part of a dwelling-house may be forced.8)

But “ when the king is a party ” as, e.g., in the case of the apprehension of a felon, the officer may enter the house as best he may by breaking the door or otherwise. It must, however, be carefully noted that no such breaking becomes justifiable until the officer, having given due notice of his business, and having demanded admission, has been refused to be allowed to enter the house. Sections 47 and 100 of Criminal Procedure Code, 1973 lays down the procedure to be followed by persons conducting search in accordance with the provisions of the said Code. Outer doors may also be broken in execution of process at the suit of the State, or for contempt of a House of Parliament or of a superior Court.9) There are also several statutes authorising public servants, and in some case private persons, to enter on lands and into houses for divers purposes.

The house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house, or the goods of any other which are brought and conveyed to his house, to prevent a lawful execution, and to escape the ordinary process of law; for the privilege of his house extends only to him and his family, and to his own proper goods, or to those which are lawfully and without fraud there; and therefore, in such cases, after denial on request made, the sheriff may break the house. However, he enters at his peril, whether he does so peaceably or not. He has no right of entry for the purpose of search, but is only justified if the person whom he desires to arrest or the goods which he desires to seize are in the house. It has been said that if the sheriff enters the house of a stranger, even through an open door, he does so at his peril, and, if the goods of which he is in search are not found there, he is a trespasser.10) It appears, then, that although the sheriff cannot break the doors of one's house in the execution of a civil process against one's own goods, he may yet justify a breach for the purpose of seizing the goods of a stranger whose ordinary residence is elsewhere. A house, however, in which a man habitually resides would seem, on principle and on authority, to be on the same footing as his own house so far as executions are concerned, for it is there that one would naturally expect to find him and his goods. The sheriff, therefore, cannot break the outer door of such a house to execute any process against the man's goods.

Semayne's case establishes the following points:

  1. That the house of every one is to him as his castle and fortress as well for his defence against injury and violence, as for his repose.
  2. When any house is recovered by any real action, the sheriff may break the house and deliver the seisin or possession to the demandant or plaintiff.
  3. In all cases, when the King (State) is party, the sheriff (if the doors be not open) may break the party's house either to arrest him, or to do other execution of the King's process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open the doors.
  4. In all cases when the door is open the sheriff may enter the house, and do execution, at the suit of any subject, either of the body or of the goods; and so may the lord in such case enter the house and distrain for his rent or service. But it is not lawful for the sheriff (on request made and denial) at the suit of a common person to break the defendant's house, etc., to execute any process at the suit of any subject.
  5. The house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution, and to escape the ordinary process of law; for the privilege of his house extends only to him and his family, and to his own proper goods, or to those which are lawfully and without fraud there; and therefore in such cases, after denial on request made, the sheriff may break the house.

Indian law: As regards the first four of these points, there is little doubt that the law laid down in them is in accordance with the law in force in India. If a bailiff break the doors of a third person, in order to execute a decree against a judgment-debtor, he is a trespasser if it turn out that the person or goods of the debtor are not in the house.11) A nazar or sheriff cannot break open a defendant's dwelling-house to execute civil process against his person or goods if the outer-door is closed and locked, even when he finds that the defendant has absconded to evade such execution. The privilege extends to a man's dwelling-house, or outhouse or any office annexed to the dwelling-house, but not to a building standing at a distance from the dwelling-house and not forming parcel of it.12)

Section 62 of the Civil Procedure Code 1908.

  1. No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.
  2. No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.
  3. Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

B and G lived together in a house at Blackfairs as joint-tenants. B contracted heavy debts, and one of the largest and pressing of his creditors was Semayne, to whom he “acknowledged a recognizance in the nature of a Statute staple.” In these circumstances B died, and by right of survivorship, the ownership of the house, became vested in G. In that house were “divers goods” of B, and to these, in virtue of the Statute staple, Semayne not unreasonably considered himself entitled. Accordingly, he instructed the sheriffs of London to do the best for him and these persons armed with a proper writ, set off for Blackfairs. But when they came to the house, G who had come to know of this, shut the door in their faces, “ whereby they could not come and extend the same goods,” disturbing the execution. In an action brought by Semayne it was held that G had done nothing wrong in locking the front door, and that, even when the King is a party, the house-holder must be requested to open the door before the sheriff can break his way in.13) The protection from a forcible entry by a sheriff's officer for the purpose of execution, which the law affords to a man's dwelling house does not extend to a shop where he does not reside.14)

Distress

A distress is a remedy for the performance of a duty, or the satisfaction of a demand, which consists in the taking, without legal process, of a personal chattel from the possession of the defaulter into the hands of the party grieved, as a pledge for the performance or satisfaction required; with a power in case of continued default to sell the thing taken in compensation for the damage sustained. As between landlord and tenant, any rent reserved by demise, and in arrear, may be recovered by distress upon any goods or cattle found upon the demised premises without previous demand being made. But a landlord may divest himself of this right.15) Unless there be an express and unqualified power of distress by agreement, the right depends upon there being an actual demise to a tenant with a fixed rent reserved. The reservation of an annual sum in a demise will not in itself be sufficient. The rent must be payable at a certain time. The right to distrain is lost upon an assignment of the lessor's interest.16) It is one of the most ancient and effectual remedies for the recovery of rent.

Executors, administrators, guardians, married women, mortgagees, receivers, agents, joint-tenants, tenants-in common, etc., may distrain.

A distress may be absolutely illegal in a variety of ways:

  • if made after tender;
  • if made after a previous distress;
  • if it be made at the wrong place or time;
  • if the manner of the entry be wrongful;
  • if the goods are taken which the law protects from distress;
  • if distress is made contrary to agreement or by taking advantage of the distrainer's own wrong; and
  • if made by unqualified persons.

There can be no distress against the Crown, or foreign ambassadors and their servants, or against companies in liquidation.

Where the original entry of a distrainer is unlawful the whole of his subsequent proceedings are necessarily unlawful likewise, and he is liable for any goods which he may seize to the same extent as any other trespasser.17)

Distress damage feasant

Distress damage feasant is a remedy by which, if cattle or other things be on a man's land encumbering it, or otherwise doing damage there, he may summarily seize them, without legal process, and retain them impounded as a pledge for the redress of the injury he has sustained. It is applicable whenever any thing, animate or inanimate, is upon the land actually doing damage thereto or to its produce, and is available for any person who is aggrieved by such damage. This right is founded on the principle of recompense, which justifies a person in retaining that which occasions injury to his property till amends be made by the owner. The distress being a remedy for trespass, the right can be exercised only by a person who has a sufficient possession of land to entitle him to maintain an action of trespass All chattels whatever are distrainable damage feasant, except things in actual use. Thus, a locomotive has been distrained damage feasant where it has not been actually straying, but had been put on a Railway company's line without the statutable approval of that company. The distress must be taken at the time the damage is done; for, if the damage was done yesterday, and the distress taken to-day, that would be illegal.18) If, therefore, a man coming to distrain beasts damage feasant sees the beasts on his ground, and the owner of the beasts, or his servant, chases them out before the distress is taken, though it is done purposely to prevent the distress, yet the owner of the soil cannot dis train them ; for the beasts must be damage feasant at the time of the distress.

Where there is no trespass there is no right of distress. If cattle on being driven lawfully along a road stray on to the unfenced land adjoining, they cannot be distrained until there has been a reasonable time for driving them out19); but if they are unlawfully on the road they may be distrained directly they stray from it to the adjoining land.20) Where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice. Distress damage feasant is not allowed against a party having any colour of right.21)

For damage feasant one may even distrain in the night; but a distress for rent can be made during day only.

Indian law: It may be doubted if the right of distress damage feasant would be held to exist, except under express law, in this country. But there is a special enactment, viz., Cattle Trespass Act (I of 1871) which contains special provisions regarding the impounding of cattle taken trespassing and doing damage.

Acts of necessity

Entry on the land of another person without his consent is justifiable on the ground of necessity, e.g., putting out fires for public safety, defence of the realm, etc.

Self-defence

A trespass may be excused as having been done in self-defence, in order to escape from some pressing danger or apprehended peril, or in defence of the possession of a man's goods, chattels, cattle, sheep, or domestic animals.

Re-entry on land

In England, if one is wrongfully in possession, and the rightful owner enters, he is no trespasser, but thereby acquires possession, and may bring trespass against any person who continues upon the land.22) So that he who has the freehold and the right of entry, may justify a forcible entry, though he may be liable to an indictment for the public offence.23) The party in wrongful possession cannot recover damages from the rightful owner who forcibly turns him out of possession; but he may recover for independent acts of wrong done in the course of entry.24) The right rule seems to be that if a man having a right to possess, can, without any breach of the law, get to himself the possession, he is quite justified in so doing; and his right will thus become clothed with a legally complete and exclusive possession. But if to regain possession, he must do some thing which, apart from his right to possess, would be a wrong in relation to the other who has the possession in fact, then the bare right to possess will not justify the act done any more than if there had been no such right; he must invoke the aid of the law.

Indian law: Under the Specific Relief Act, 1963 section 6, if one in possession of immovable property is dispossessed otherwise than by course of law, he may, within six months, sue to recover possession without reference to any title set up by another, which is left to be determined in a separate action.

The Bombay High Court has pointed out the distinct ion between the English and the Indian laws on this subject thus: In Pollock on Torts the English law on the effect of possession obtained by the true owner by peaceful or forcible entry is stated, after an examination of the somewhat conflicting authorities, to be that the possession of a rightful owner gained by forcible entry is lawful as between the parties, but that he may be punished for the breach of the peace by losing it, beside paying a fine to the King. This latter part of the law is the result of the Statute of 5 Richard II. to which we have nothing corresponding in this country. The Indian Legislature has, however, provided for the summary removal of any one who dispossesses another, whether peaceable or other wise than by due course of law; but subject to such provision there is no reason for holding that the rightful owner so dispossessing the other is a trespasser, and may not rely for the support of his possession on the title vested in him, as he clearly may do by English law. This would also appear to be the view taken by West, J., in Lillu v. Annaji.25) This view is subject to Section 6 of the Specific Relief Act.

B purchased land from M and subsequently brought a suit against M to obtain possession. He got a decree but did not execute it within three years. M died, and after his death and while his daughter (the plaintiff) was a minor, B took forcible possession of the land. Eight years afterwards the plaintiff attained her majority, and she then filed this suit to recover the land. The lower Court held that B having failed to execute his decree for possession was wrong in taking possession during the minority of the plaintiff without the intervention of a Court; that in so doing he was a trespasser, and that the plaintiff, as M's heir, was entitled to have possession given to her, until ousted in due course of law. Held (reversing the decree) that, subject to the provision of s. 9 of the Specific Relief Act (I of 1877), there is no reason for holding that in India the rightful owner dispossessing another is a trespasser, and may not rely for the support of his possession on the title vested in him, as he clearly may do by English law.26)

Retaking of goods and cattle

An entry on plaintiff's land may be justified on the ground that the plaintiff took the defendant's goods and carried them on to his own land, wherefore the defendant entered the plaintiff's land and took his goods back again; but the entry is not justifiable from the mere fact of the defendant's goods being on the plaintiff's land. It must be shown that they came there by the plaintiff's act27), or that they had been stolen from the defendant.28) Thus, a landlord who starts a pheasant on his own land, and shoots the bird while it is flying over the adjoining land of his neighbour, commits a trespass if he goes on such adjoining land to pick it up.29) The true owner may retake the goods if he can, even from an innocent third person into whose hands they have come; and he may use whatever force is reasonably necessary for the recaption.30) The owner cannot enter on a third person's land, unless the original taking was felonious; or the goods have been claimed and the occupier of the land has refused to deliver them.31)

Abating a nuisance

Abatement, that is removal of the nuisance by the party injured, must be:

  1. peaceable,
  2. without danger to life or limb, and
  3. after notice to remove the same, if it is necessary to enter another's land to abate a nuisance, or where the nuisance is a dwelling house in actual occupation on a common, unless it is unsafe to wait.

Special property or easement

The grantee of an easement may enter upon the servient tenement in order to do necessary repairs.

Liberum tenementum

Liberum tenementum, i.e., frank or free tenement. Land may be entered on the ground that it belongs to defendant. This plea is generally pleaded to determine the question of title. This was formerly a usual plea of a defendant in an action of trespass alleging a general freehold title. It is now obsolete.

1)
Marshall v. Ulleswater S. N. Co.
2)
Thomas v. Sorrell
3)
Ditchman v. Bond
4)
Taylor v. Fisher
5)
Roper V. Harper
6)
Edwick v. Hocks
7)
Barker v. St. Quintin
8) , 14)
Hodder v. Williams
9)
Glasspole v. Young
10)
Cooke v. Birt
11)
Dadabhai v. Sub Collector of Broach
12)
Bai Kuvar v. Venidas
13)
Semayne v. Gresham
15)
Giles V. Spencer
16)
Hazeldine v. Heaton
17)
Attack v. Bramwell
18)
Warmer v. Briggs
19)
Goodwin v. Cheveley
20)
Dovaston v. Payne
21)
Cape v. Scott
22)
Taylors. Cole
23)
Harbey v. Bridges
24)
Beddall v. Maitland
25) , 26)
Bandu v. Naba
27)
Patrick v. Colerick
28)
Higgins v. Andrews
29)
Osbond v. Meadows
30)
Blade v. Higgs
31)
Anthony v. Haney


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