This is a landmark case on the rights of an owner in the air space above his land.
Facts of the Case
The plaintiff, Sidney Lewis Bernstein, Baron Berstein is the owner of a land known as Coppings Farm in Leigh, Kent. The defendants, Skyviews & General Ltd. are aerial photographers and they are in the business to take aerial photographs of properties of all types and then to offer them for sale to the owners.
On 3 August 1974, the defendants took a single aerial photograph of the plaintiff’s country house. They offered to sell to the plaintiff the photograph that they had taken of his house. The plaintiff wrote to the defendants and complain that photographing his house without his permission was a gross invasion of privacy and he demanded that they hand over or destroy all negatives and prints of his house. Unfortunately, the managing director was not made aware of this letter.
Subsequently, the defendant’s company employee had then wrote to the plaintiff and offered to sell him the negative. The plaintiff went to his solicitors because this action had caused displeasure to him. They wrote a letter to the defendants on 12 March 1975, complaining the defendant’s action and alleging that defendants had trespassed into his air space, invaded his privacy, demanded the defendant to deliver up the negatives and prints, undertake not to infringe his rights again and to apologise. The defendant did not respond to his letter. As a result, plaintiff commenced this action by writ dated 26 June 1975.
Issue of the Case
Whether the defendants’ aircraft committed a trespass in flying over the plaintiff’s land?
Judgment of the Court
From the facts, the Court found that on 3 August 1974, the defendants’ plane flew over the plaintiff’s land for the purpose of photographing his house and did so without his permission.
The plaintiff claimed that he is the owner of the air space above his land or at least he has the right to exclude any entry into the air space above his land. He relies on a Latin maxim, cujus est solum ejus est usque ad coelum et ad inferos (whoever owns the soil, holds title all the way up to the heavens and down to hell). The plaintiff also relied strongly on Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334, which the Court granted a mandatory injuction ordering the defendants to remove a sign which projected over the plaintiff’s property. The Court in Kelsen’s case had concluded that a trespass and not a mere nuisance was created by the invasion of the plaintiff’s air space by defendant’s sign.
The Court held that the decision in Kelsen v Imperial Tobacco Co. does not intend to hold that the plaintiff’s rights in the air space continued to an unlimited height. The court held that there is no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height. The court also accepts the collective approach which rejected the uncritical and literal application of the maxim.
The approach followed is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in the Court’s view best struck in our present society by restricting the rights of an owner in the air space above his
land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public.
Applying this test to the facts of this case, the Court find that the defendants' aircraft did not infringe any rights in the plaintiff’s air space, and thus no trespass was committed. The mere presence of defendant in the air space many hundred feet above the ground does not cause any interference to the plaintiff with any use of his land. Furthermore, there is no law against taking a photograph.
The plaintiff was anxious that his house was photographed because the plaintiff worried that tit might prove a valuable aid to a terrorist. However, plaintiff could not cite any authorities that could prevent someone from taking a photograph of his house for innocent purpose. provided they did not commit some other tort such as trespass or nuisance in doing so.
The defendant also raised a further defence under section 40(1) of the Civil Aviation Act 1949 which provides:
"No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight so long as the provisions of Part II and this Part of this Act and any Order in Council or order made under Part II or this Part of this Act are duly complied with."
It was agreed that all statutory provisions have been complied by the defendants and the aircraft was flying at a reasonable height but the plaintiff submitted that this protection under section 40(1) is limited to a bare right of passage. The Court held that an owner cannot bring an action in trespass or nuisance if he relies solely upon the flight of the aircraft above his property but it does not prohibit him from bringing an action if he can show some activity carried on by or from the aircraft that can be considered a trespass or nuisance. The Court held that taking a single photograph would not be regarded as an actionable nuisance. Thus, the section 40(1) of the Civil Aviation Act 1949 would prevent the plaintiff from bringing an action of trespass.
Principle of the Case
the rights of a landowner to enjoy the use of his land have to be balanced against the rights of the general public to take advantage of the use of air space. The rights of an owner in the air space above his land is restricted to such height as necessary for the ordinary use and enjoyment of his land and the structures upon it.
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