Trespass ab initio

A person may legally enter upon another’s land either by consent or by authority of law. In the former case when a person enters upon the another’s land by consent and abuses or goes beyond the permission given to him, he may be liable only as trespasser. But if a person enters the land of another under the authority of some law and then abuses his authority by doing some wrongful act, then he will be treated as trespasser ab initio i.e., he will be treated as though he had been a trespasser from the very beginning, from the moment of his entry. Law presumes that he had gone there with a wrongful purpose in mind from the very beginning.

It should be noted that the act by which a person is to be deemed a trespasser ab initio must of itself be a Trespasser (Sharland Vs. Goveti).

The leading case of Six Carpenters lays down three points:

(i) This if a man abuses an authority given to him by law, he becomes a trespasser ab initio.

(ii) That in an action of trespass, if the authority be pleaded, the subsequent abuse may be replied.

(iii) That a mere non-fessance does not amount to such an abuse as renders a man trespasser – ab initio.

Limitation, to the Application of Doctrine of the Trespass ab initio

1. The doctrine applies only where the entry is permitted under the authority of law. Where the entry is made with the consent of the owner or under some-contract, this doctrine does not apply.

2. This doctrine will apply-only where wrongful act is a misfeasance (ie, improper doing of an act which a person might lawfully do). Doctrine does not apply if there is only a case of non-feasance (ie., not doing an act which a man ought to do).

Six carpenters entered the plaintiff’s inn and took wine and breads there. They refused to pay for wine and bread when so asked. Plaintiff sued them for trespass ab initio. It was held that non-payment was simply an omission to do a certain thing which the defendants were supposed to do and it amounted to ‘non-feasance’. ‘Non-feasance’ does not render
a person liable for trespass ab initio. So the carpenters were not trespassers ab initio.

3. The doctrine will not apply to cases where the original entry can be justified on an independent ground to which the abuse of authority has no reference.

In the cause of Elias vs. Pasmore, the defendant police officers lawfully entered the premises of the plaintiff to arrest him. While in the premises the defendants took possession of a large number of documents some rightfully and some wrongfully. It was held that the defendants were the trespassers only with respect to the documents wrongfully seized. Defendants were not trespassers ab initio because their original entry could be justified by their lawful arrest of the plaintiff. The lawful arrest of the plaintiff was an independent ground for entry and it had no difference to the abuse of authority which consisted in the wrongful nature of the documents.

The doctrine of trespass ab initio has very little application `in modern times.

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