Law of Torts
Trespass to Land and Trespass to Goods: Two Branches of One Ancient Action
Both descend from the writ of trespass, both protect possession rather than ownership, and both are actionable per se, without proof of any damage. They differ in the subject matter and in everything that follows from it. Land is immovable, permanent and cannot be carried away, so trespass to land is concerned with entry and with remaining; goods are movable, can be taken, damaged or sold, so trespass to goods sits alongside conversion and detinue in a group of three wrongs which between them cover interference, dispossession and detention.
1. The Comparison
Trespass to land | Trespass to goods | |
The subject | Immovable property, including the subsoil and the airspace to the height at which the occupier may reasonably use it | Movable property, that is, chattels |
What is protected | Possession of the land | Possession of the goods |
The interference | Entry, remaining, or placing something upon the land | Touching, moving, damaging, or taking |
Actionable per se | Yes | Yes, on the better view, though some authority requires damage for a mere touching |
The mental element | The entry must be voluntary; an intention to trespass is not required | The act must be voluntary and direct; an honest mistake is no defence |
Mistake | No defence. A person who enters believing the land to be his own is a trespasser | No defence |
Continuing wrong | Yes, so long as the intrusion remains | Yes, where the goods are retained |
Companion torts | Nuisance, where the interference is indirect | Conversion and detinue |
Remedies | Damages, injunction, recovery of possession, abatement, re entry | Damages, an order for return, an injunction |
2. Trespass to Land
- Any unauthorised entry upon land in the possession of another is a trespass, however slight and however brief. Walking across a field, leaning against a wall, driving a nail into it, or throwing anything upon it will do.
- Three forms are recognised: entering the land; remaining upon it after a right of entry has ended; and placing or projecting any material object upon it.
- The trespass extends beneath and above. Tunnelling under the surface is a trespass, and so is an intrusion into the airspace at a height at which the occupier may reasonably use it, which is why a projecting signboard or a crane jib swinging overhead is restrained although it causes no damage at all.
- Possession and not ownership is protected, so a tenant sues and not the landlord, and a person in actual possession may sue a stranger even if his own title is defective.
- Trespass by relation allows a person entitled to immediate possession who afterwards enters to sue for trespasses committed in the interval, his possession being related back to the moment his right accrued.
- The subject is examined fully in TORT 062 and TORT 063.
3. Trespass to Goods
- Any direct and unauthorised interference with goods in the possession of another is a trespass to goods: taking them, moving them, damaging them, or in the older cases merely touching them.
- Kirk v. Gregory, (1876) 1 Ex D 55 illustrates both the reach and the modesty of the action. A relative of a man who had just died moved his rings from one room to another for safe keeping, honestly believing it necessary. The rings were stolen from the second room. She was held liable in trespass, and nominal damages of one shilling were awarded, the interference being unjustified though entirely well meant.
- An honest mistake is no defence, and neither is a good motive.
- The plaintiff must have possession, actual or constructive, at the time of the interference. A bailor who has parted with possession for a term cannot sue in trespass, though he may sue in conversion.
- Whether damage is required is not entirely settled. The better view, and the one consistent with the tort's classification as a trespass, is that it is actionable per se; some authority requires damage where the interference is a mere touching.
4. The Three Wrongs Relating to Goods
Trespass to goods | Conversion | Detinue | |
The gist | Direct interference with possession | Dealing with goods in a manner inconsistent with the owner's right | Wrongful detention after a demand for return |
What is protected | Possession | The right to possess | The right to possess |
Who may sue | The person in possession | The person entitled to immediate possession | The person entitled to immediate possession |
Demand and refusal | Not required | Not required, but is evidence of conversion | Essential |
The measure | The damage done, or nominal damages | The full value of the goods at the date of the conversion | Return of the goods, or their value at the date of judgment |
Effect of a judgment | Does not pass title | A satisfied judgment passes title to the defendant | The plaintiff may have the goods themselves |
Present standing | Survives | Survives | Abolished in England in 1977; survives in India |
- The three overlap constantly and are pleaded together. A defendant who takes goods and keeps them commits all three at once.
- Detinue is the only one of the three that yields the goods themselves. Conversion yields their value, which is an answer for a fungible chattel and no answer at all for a unique one, and that is why detinue survives in India although England abolished it.
- The subject is examined fully in TORT 072 and TORT 073.
5. Why Both Are Actionable Per Se
- Possession is an absolute right. A person in possession is entitled to exclude everybody, for any reason or none, and a rule requiring him to prove harm would make the right conditional on the intruder happening to do damage.
- The wrong is the intrusion and not its consequences. A trespasser who walks across a field and leaves it exactly as he found it has still denied the occupier the very thing possession consists of.
- Nominal damages serve a function. They establish the plaintiff's title, deny the defendant a foothold from which a prescriptive right might later be argued, and support an injunction restraining repetition.
- The rule is the practical reason trespass is pleaded even where nuisance or negligence might also lie: it requires no proof of loss, no enquiry into the defendant's care, and no weighing of reasonableness: TORT 139.
6. Defences Common to Both
- Consent or licence, express or implied, which is why a visitor to a shop is not a trespasser until the implied permission is withdrawn.
- Lawful authority, including a statutory power of entry, seizure or search, and the execution of process.
- Necessity, where the act was done to prevent a greater harm, which is narrow and is not established merely by showing that the interference was sensible.
- Recaption and distress damage feasant, being self help remedies to retake one's own goods or to seize a chattel or animal doing damage until amends are made.
- Jus tertii is generally no defence against a possessor. A defendant sued by a person in possession cannot ordinarily answer that the title belongs to a third party, subject to the recognised exceptions where the defendant acts with the authority of the true owner.
⚠ Why the law protects possession rather than title, and what that means in practice It is natural to assume that these torts protect ownership, and almost everything about them becomes confusing if that assumption is carried through: a tenant recovers and his landlord does not, a bailee sues for the full value of goods he does not own, and a defendant is not permitted to prove that the plaintiff has no title at all. The explanation is that the trespassory torts were built to keep the peace, not to decide questions of title. A person in possession, however he came by it, is entitled to remain undisturbed until somebody with a better right displaces him by lawful process, and the alternative rule would invite every claimant with an arguable title to help himself. That is why a squatter may sue a stranger who evicts him, why a finder may sue anyone but the true owner, and why the defence of jus tertii is so narrowly confined. The practical consequence for a pleading is that the first thing to establish is not who owned the land or the goods but who was in possession at the moment of the interference, and a plaint that opens with a chain of title has usually pleaded the wrong case; the title matters only when the contest is between the two claimants themselves. |
7. The Position Stated Shortly
1. Both torts descend from the writ of trespass, protect possession rather than ownership, and are actionable per se.
2. Trespass to land is any unauthorised entry, remaining, or placing of an object upon land in another's possession.
3. It extends beneath the surface and into the airspace at a height at which the occupier may reasonably use it.
4. Trespass to goods is any direct and unauthorised interference with goods in another's possession.
5. Kirk v. Gregory shows that an honest and well meant interference is still a trespass, and nominal damages follow.
6. Mistake is no defence to either, and neither is a good motive.
7. Trespass to goods sits alongside conversion, which protects the right to possess and yields the value, and detinue, which requires a demand and yields the goods themselves.
8. Detinue was abolished in England in 1977 and survives in India, which matters where the chattel is unique.
9. Both are actionable per se because possession is an absolute right and the wrong is the intrusion rather than its consequences.
10. The first question in any such pleading is who was in possession at the moment of the interference, not who held the title.