This occurs whenever a person’s (plaintiff) possession in land is wrongfully interfered with. The key thing here is possession and not necessarily ownership and as such the plaintiff can be the owner or the tenant. It occurs in three ways;
i. Trespass by wrongful entering on the plaintiff’s land. E.g, encroaching, walking through the land or putting your hand through their window without their permission
ii. Trespass by remaining on the land, that is, a person who, having been initially authorized to enter upon land, is later asked to leave it and he fails to do so in reasonable time he is said to trespass by remaining on the land.
iii. Trespass by placing things on the land. It’s worth noting that this trespass is different from nuisance in that;
a) The thing place on the land directly affects the plaintiffs procession unlike nuisance which affects how they enjoy the property
b) Nuisance unlike trespass is concerned with enjoyment and not possession
c) Trespass to land is actionable per se, that is actionable without proof of injury unlike nuisance
Note- each time one repeats a trespass (continuing trespass) the court allows for fresh lawsuit.
Defenses
The main defences to an action for trespass to land are as under:-
i. Prescription
Land acquired by possession is also said to been acquired by prescription .The new owner may plead title by prescription as a defence to an action brought by previous owner to recover the land. A defendant may also plead prescription, as by proving aright of common grazing or right of way over the Plaintiff’s land.
ii. Act of Necessity
The necessity may be pleaded as a defence to an action of trespass to land e.g. entry to put out fire for public safety
iii. Statutory Authority
Where the authority is conferred by law, whether by statute or by court order, this is also an available defence e.g. the authority of a court broker
iv. Entry by licence
An entry authorized or licensed by the plaintiff is not actionable in trespass unless the authority or license given is abused.
Remedies
The remedies in respect of trespass to land include:
i. Damages
The plaintiff may recover monetary compensation from the defendant,
The extent of which depends on the effect of the dependant’s act on the value of the land in question.
ii. Ejection
We saw earlier on that a person is entitled to use reasonable force to defend his property.
Thus, where a person wrongfully enters or remains on another’s land, he may be ejected using reasonable force may entail liability for assaults an ejectment may also be based on a court order (an eviction order)
iii. Action for recovery of land
The plaintiff may bring an action to recover his land from the defendant Where there has been a wrongful dispossession, it is common for such action to be coupled with the above two remedies.
iv. Injunction
In addition to the above remedies, an injunction may be obtained to ward off a threatened trespass or to prevent the continuance of an existing one
v. Distress Damage Feasant
In the case of trespass by placing things on land (or in the case of chattle trespass) the plaintiff
has a right To detain the defendant‘s chattel or animal which is the cause of the trespass in question.