Lecture 1 Title to Land

Lord Bernstein of Leigh v Skyviews & General Ltd (1978)

Facts
Skyviews was an aerial photographer business. During a survey flight, they flew over and
took photos of Bernsteins country property. They then offered to sell the photos to him
for 15, but he claimed that the act amounted to trespass and sued them for wrongfully
entered the airspace above his premises in order to take the photograph of his house.
The evidence showed that Skyviews had definitely flown directly over the land, at a
height of 600-1000 feet, for the purpose of photography without Lord Bernstein's
consent. Bernstein relied on the old Latin maxim cujus est solum ejus est usque ad coelum
et ad inferos (whose is the soil his is also that which is above and below it)
Legal Issues
Did the act of flying over the land amount to trespass?
Ruling
An owner had certain rights in the airspace above his land. However, there was no
trespass, as there was no direct invasion of the airspace at a height that was necessary for
the ordinary use and enjoyment of the land.
It was held that the rights of landowners did not extend to an unlimited height. The latin
maxim usque ad coelom was a fanciful phrase, and not to be applied literally.
The rights of the public and the rights of landowners are to be balanced.
Griffiths J: If the latin maxim were applied literally it would lead to the absurdity of
trespass being committed every time a satellite passed over a suburban garden. The
problem in this case was to balance the rights of a landowner to enjoy the use of his land
against the rights of the general public to take advantage of all that science now offered
in the use of airspace. The best way to strike that balance in our present society was to
restrict the rights of an owner in the airspace above his land to such height as was
necessary for the ordinary use and enjoyment of his land and the structures upon it, and
to declare that above that height he had no greater rights in the airspace than any other
member of the public.
However, if a plaintiff was subjected to harassment of constant surveillance of his house
from the air, accompanied by photographing of his every activity, the courts would regard
such an invasion of privacy as an actionable nuisance for which they might give relief.

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Star Energy Weald Basin v Bocardo (2010)

Facts
Star Energy bored for petroleum by sinking wells into the substratum by means of drilling.
The wells may be drilled diagonally rather than vertically from the well head.
The apex of the oil field lay beneath Bocardo's land. They sunk three wells at depths of
about 1,300, 800 and 950 feet beneath the surface respectively. They did not seek to
negotiate any contractual licence or wayleave from Bocardo to drill the wells
Legal Issues
Was the drilling of the wells under Bocardo's land an actionable trespass?
What is the correct measure of damages?
Ruling
A trespass occurs when there is an unjustified intrusion by one party upon land which is in
the possession of another. An actionable trespass is determined by:
(1) whether Bocardo's title to the land extends down to the strata below the surface
through which the three wells and their casing and tubing pass;
(2) whether possession is a pre-condition for bringing a claim for trespass and, if so,
whether Bocardo has or is entitled to possession of the subsurface strata;
(3) by way of defence, whether the respondents have a right under the Act to drill
and use the three wells to extract petroleum from beneath Bocardo's land.
The principles applied to airspace were found to differ from those to be applied to substrata land. If the maxim cujus est solum ejus est usque ad coelum et ad inferos were
accepted as a sound guide to what the law is, there would be no stopping point.
Lord Hope: The fact that there were substances at that depth which can be reached and
got by human activity is sufficient to raise the question as to who, if anybody, is the
owner of the strata where they are to be found The earth is not flat, as the glossator
may have supposed.
The better view is to hold that the owner of the surface is the owner of the strata
beneath it unless there has been an alienation of them by a conveyance, at common
law or by statute to someone else There must obviously be some stopping point, as one
reaches the point at which physical features such as pressure and temperature render the
concept of the strata belonging to anybody so absurd as to be not worth arguing about.
But the wells that are at issue in this case are far from being so deep as to reach the
point of absurdity. Indeed the fact that the strata can be worked upon at those depths
points to the opposite conclusion. I would hold therefore that the appellant's title
extends down to the strata through which the three wells pass.

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Davies v Bennison (1927)

Facts
A man standing on his own land shot and killed a cat on a neighbouring property. The cat
had been sitting on the roof of the shed, minding its own business. The bullet did not
touch the ground of the property.
The plaintiff claimed damages for:
(1) Negligence in firing a loaded gun at a cat, which caused the plaintiff fright and
shock
(2) The value of the cat
(3) The trespass by shooting into her land.
Legal Issues
Did the firing of the bullet through the airspace amount to trespass?
Ruling
This amounted was trespass. At first instance, a jury found for the defendant although
directed by the judge to find for the plaintiff. It was then held that the direction was
correct and the jury should have assessed damages for a trespass.
The agitation of seeing her cat killed in her own yard was found to have exacerbated the
plaintiffs neurasthemia and gastric troubles. However:
The Court held that a plaintiff has sufficient rights to the airspace above her land to
prevent his neighbour from shooting her cat while it was sitting on the roof of her shed.
Nicholls CJ: Shock caused by seeing an injury occur to another human being is in law
considered too remote from the original wrongful act of the defendant causing the injury
to be a ground for damages, and it seems to me to be quite clear that a pet animal,
however cherished, cannot be regarded as nearer and dearer than a child or other loved
relative.
It is curious that the law as to trespass by missiles which do not touch the ground never
has been authoritatively laid down in England nor (as far as I can discover) in the United
States of America Trespass is a breach of the negative duty, incumbent upon all, not to
interfere directIy and illegally with ownership.
It seems an absurdity to say that if I fire at anothers animal on his land, hit it, kill it, and
so leave the bullet in it, I have committed no trespass, and yet, if I miss the animal and so
let the bullet fall into the ground, have committed a trespass. Such distinctions have no
place in the science of the Common Law If the hovering aeroplane is perfected the
logical outcome of Lord Ellenboroughs dictum would be that a man might hover as long
as he pleased at a yard, or foot, or an inch, above his neighbours soil, and not be a
trespasser, yet if he should touch it for one second he would be.

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Clifton v Viscount Bury (1887)

Facts
An action was brought to restrain the 12th Middlesex Volunteer Corps, of which Viscount
Bury was commanding officer, from shooting over a range on Wimbledon-common to the
detriment of Major-General Cliftons land. The plaintiff also sought damages for injury
caused by such shooting.
The land in question was called Newlands Farm, and it adjoined Wimbledon-common.
Clifton alleged that three fields had been injuriously affected by the firing. The
defendants admitted to firing bullets from the 600 and 1,000 yard ranges, and at least
one of the targets passed over one of the fields on Newlands Farm.
Legal Issues
Was a trespass committed?
Ruling
Hawkins J found in favour of the plaintiff. It was held that the Corps had no statutory
privilege under the Putney and Wimbledon Commons Act 1871 (UK) s 51. The sole object
of the Act was to deal with the commons as public property, and no power was given to
the Conservators to deal with or grant privileges over any lands other than those which
formed part of the common. The line of fire over the Newlands Farm did not form part of
the common, and s 106 of the Act seemed expressly framed to prevent the land of private
owners adjoining the common from being traversed by bullets fired in the course of rifle
shooting on the common.
The use of the common in such a manner as to cause bullets to fall constantly upon the
plaintiffs land so as to materially interfere with the plaintiffs ordinary use and enjoyment
of his farm constituted a series of trespasses of an actionable character.
However, Hawkins J found that when the 1,000 yard range was used and the bullets
traversed the land at a height of 75ft, it was not a trespass in the strict technical sense of
the term. While not a trespass, his Lordship still regarded that grievance as giving rise to a
legal cause of action.
The bullets traversing the land was not without risk, and it would cause a not
unreasonable alarm, which rendered the occupation of that part of the farm less
enjoyable than the plaintiff was entitled to have it. This was a legal grievance sufficident
to maintain an action.
The Corps were not an entity capable of being sued. Viscount Bury could be sued, and
was therefore liable to pay damages to Clifton in the amount of 40 shillings, and Hawkins
J granted injunctions to prevent future firing of bullets across the land.

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Kelsen v Imperial Tobacco Co (1957)

Facts
Kelsen held a lease on assignment for a tobacco shop in London and carried out his
business there. The shop had a flat roof top. During the lease, the rival wholesale tobacco
company, Imperial Tobacco, fixed three signs which were mounted on a frame which
fixed against the wall. The boards projected four inches into the property.
Kelsens landlords consented to the erection of a larger sign. A new lease was granted to
Kelsen. The new sign was then erected by Imperial Tobacco with the plaintiffs
knowledge, which protruded into Kelsens airspace by eight inches. From time to time,
the defendants servants had access to the sign from the plaintiffs shop, with his
knowledge, to carry out maintenance work and repairs.
As a result of a business dispute between the plaintiff and the defendants, the plaintiffs
asked them to remove the sign and then brought an action against them for trespass. The
defendants argued that an invasion of airspace did not amount to trespass, but only
nuisance, and that on the facts, no nuisance existed. The defendant argued that it was
only a small intrusion and the plaintiff had no use of the airspace intruded upon.
Legal Issues
Did Kelsen have a right to the airspace above the shop?
Was there a trespass?
Ruling
Firstly, it was held that a lease of a building prima facie included the lease of the airspace
above. There was nothing in the lease to displace that conclusion, and in fact, several
clauses of the lease showed a right of user to the airspace and exterior parts of the shop.
Even though Kelsen was not using the airspace, he still had the rights to it.
Secondly, the landlords consent to the new sign could not affect the plaintiffs right to
the airspace. When the landlord consented to the sign, he had already given away the
airspace rights to the plaintiff via the lease. The landlords letter also did not create a real
right in derogation of Kelsens rights. No easement was created.
Thirdly, by allowing the sign to remain on the building did not estop him from
subsequently requiring it to be removed. On the facts, Imperial Tobacco had not been
induced by the Kelsens conduct to continue to display the sign, not had they sought
Kelsens express permission. Fourthly, the invasion of airspace amounted to trespass.
Although the injury was small, a mandatory injunction was issued for removal of the sign.
McNair J: I reach the conclusion that a trespass and not a mere nuisance was created by
the invasion of the plaintiffs airspace by this sign.

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Woollerton and Wilson v Richard Costain Ltd (1970)

Facts
Richard Costain Ltd were building contractors who installed a high crane on a site to assist
with the building work. From time to time, about 50 feet of the crane jib extended over
the plaintiffs land at a height of about 50 feet above the plaintiffs land.
The defendants admitted to the trespass but, since its removal would delay the work and
would be impractical, they expressed the intention of continuing the trespass. The
defendants offered a sum of money for the intrusion, but the plaintiff did not accept the
amount. Woollerton brought a claim for an injunction and damages.
Legal Issues
Was there a trespass?
Was an injunction available against the defendants?
Ruling
This amounted to trespass which had caused no damage, so the only other remedy
available was nominal damages. An injunction was issued; however, the Court exercised
their discretion so that the injunction was suspended and the development was allowed
to proceed on the basis that it would be too inconvenient for the builders (on the balance
of convenience).
It was persuasive that the defendants had acknowledged the trespass and offered
compensation. Since they had not acted in flagrant disregard of the plaintiffs property
rights, the Court gave them time to complete the building.
Stamp J: It is in my judgment well established that it is no answer to a claim for an
injunction to restrain a trespass that the trespass does no harm to the plaintiff.
In considering whether or not an injunction should be granted an, if so, on what terms,
the court may consider the behaviour of the parties. Nor do I think I ought to ignore in
considering whether an immediate injunction ought to granted the fact that the air space
in question has only assumed any value at all by reason of those particular defendants
necessities.
I am conscious that by so doing I am giving with one hand and taking away with the
other. But by so doing I give effect to the process by which I have come to my conclusion
that in principle there ought to be an injunction but on the particular facts of this case not
until the defendants have had a proper opportunity of finishing the job. If for any reason
the job would not be finished in November 1970, application could be made, with what
result I know not, to extend the suspension of the order.

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Yanner v Eaton (1999)

Facts
Yanner was a member of the Gunnamulla clan of Aboriginal Australians who used a
traditional form of harpoon to catch two juvenile crocodiles in the Gulf of Carpentaria,
then ate and stored some of the meat.
The Fauna Conservation Act 1974 (Qld) s 54(1)(a) stated that a licence or permit was
required to be able to take fauna, but Yanner had no such licence. He was charged for
taking the crocodiles. It was argued that s 211 of the Native Title Act 1993 (Cth) applied,
which provided that the exercise or enjoyment of native title rights and interests in
relation to land or waters was allowed without a licence.
Legal Issues
Was the relevant provision of the Fauna Act invalid under s 109 of the Constitution?
Did s 211 of the Native Title Act apply?
Ruling
Gleeson CJ, Gaudron, Kirby and Hayne JJ: The word property is often used to refer to
something that belongs to another. But in the Fauna Act, as elsewhere in the law,
property does not refer to a thing; it is a description of a legal relationship with a thing.
It refers to a degree of power that is recognised in law as power permissibly exercised
over the thing. The concept of property may be elusive. Usually it is treated as a
bundle of rights.
The High Court upheld the findings that:
(a) the exercise or enjoyment of native title rights and interests in relation to the land
or waters where the crocodiles were taken consisted of or included hunting or fishing;
(b) the State law restricted those activities other than in accordance with a licence;
(c) the Fauna Act was not one that conferred rights or interests only on ATSI peoples;
(d) accordingly, the Fauna Act did not restrict the native title holders from carrying on
those activities or from satisfying their needs and in exercise of their native title rights.
Gleeson CJ, Gaudron, Kirby and Hayne JJ: The so-called state ownership of res communes
and res nullius is only a sort of guardianship for social purposes. It is imperium and not
dominium. The state as a corporation does not own a river as is owns furniture in the
state house. It does not own wild game as it owns the cash in the vaults of the treasury.
What is meant is that conservation of important social resources requires regulation of
the use of the times when, places where, and persons by whom res nullius may be
acquired in order to prevent their extermination. Our modern way of putting it is only an
incident of the nineteenth-century dogma that everything must be owned.

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Delgamuukw v British Columbia (1997)

Facts
The appellants claimed title to a plot of land in Canada on the basis of aboriginal title that
was never extinguished.
In the original trial the plaintiffs tried to obtain "ownership", however upon appeal this
was changed to aboriginal title and self-government. The case was dismissed at trial and
on appeal the claims of all of the houses were grouped together into one and their claims
dismissed.
Legal Issues
What is the nature of the protection given to aboriginal title under s 35(1) of the
Constitution Act 1982?
Did the province have the authority to extinguish the title after confederation?
Ruling
The Court reaffirmed that aboriginal title does exist and that provincial governments
never had the jurisdiction to extinguish it because it falls under federal jurisdiction under
s 91(24) of the Constitution Act 1867.
The Court held that aboriginal title is special for a few reasons. It is inalienable it cannot
be transferred to anyone other than the Crown. Its source is unique as it arises from
occupancy before sovereignty. The aboriginals hold the title communally.
The Court stated that aboriginal title is given full protection under s 35(1). They also
establish the test for determining if aboriginal title exists:

the land must have been occupied before sovereignty,

continuity between pre-sovereignty and modern times (but not unbroken chain)
at the time of sovereignty, the occupancy must have been exclusive (but it could
have been jointly exclusive by more than one party or tribe).

If these are established, then aboriginal title exists. If it partially fails, it is possible to
establish a claim less than title. It is not an absolutely protected title. It can be infringed
upon if it passes a two-part test:
1. the infringement must be in furtherance of a legislative objective that is
compelling and substantial,
2. the infringement must be consistent with the special relationship between
aboriginals and the Crown.
This relationship is special because both the ideas of the common law and the aboriginal
traditions must be taken into consideration when making the decisions, as aboriginals are
a unique case and must be given respect in terms of their traditions and laws.

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Graham v KD Morris & Sons Pty Ltd (1974)

Facts
The defendant was constructing a building upon land which adjoined the plaintiffs land in
Kangaroo Point. The defendant had a crane erected. When the crane was not in
operation the jib was left free to rotate so that the wind could cause the jib to encroach
over the plaintiffs land and was frequently suspended above the roof of her house.
A week after the issue of the writ for an injunction to restrain the trespass and the notice
of motion for an interlocutory injunction, the defendants solicitors wrote a letter to the
plaintiffs solicitors formally seeking permission to the encroachment and offering to pay
reasonable compensation. The defendant had not previously sought permission.
Legal Issues
Was there a trespass to land?
Were damages an appropriate remedy?
Ruling
(1) That an offer to pay damages by a defendant against whom an injunction is sought
made at any time prior to the determination of whether or not an interlocutory
injunction should issue ought generally to be admissible in evidence.
(2) That the invasion of the plaintiffs airspace by the projection of the crane jib was a
trespass and not a mere nuisance.
(3) That damages would not be an appropriate remedy in the circumstances of the case.
(4) That the defendant should be restrained until the trial of the action from trespassing
on the plaintiffs land by virtue of its crane jib.
Campbell J: The offer to pay reasonable compensation made not only after the
institution of the action but also after about two months notice of the alleged trespass
had been given to the defendant to bring the trespass to an end, has not altered the
conclusion to which I have come for other reasons, namely, to grant the injunction.
The trespass here is neither negligent or involuntary In my opinion, the invasion of the
plaintiffs airspace by the projection of the crane jib is a trespass by the defendant and
not a mere nuisance I am persuaded that the over-hanging crane which, as the plaintiff
says and I accept, is both an unsightly feature of her land and a cause of nervousness and
apprehension to her, interferes with that part of the airspace above her land which is
requisite for the proper use and enjoyment of that land.
I will not refuse the injunction because of the hardship of the defendant. In any event,
any hardship which the defendant B will suffer has been brought about by its own
negligence and its cavalier attitude.

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Victoria Park Racing v Taylor (1937)

Facts
The plaintiff owned Victoria Park, a racing track which charged admissions to people who
placed bets on the races. The racecourse was surrounded by a very high fence.
Taylor, who had a house and front yard adjacent to the course, allowed a radio
broadcasting station to construct a platform from which someone could see into the
course and broadcast the races and information about horses posted at the ground,
which facilitated unregulated off-track betting. Attendance at the ground plummeted.
The plaintiff claimed that on-track betting was lower as a result of the broadcasts, as
people who had previously come to the track were now listening on the radio instead and
Taylor was profiting at the expense of the plaintiff.
He applied for an injunction against Taylor on the footing of nuisance and breach of
copyright. Privacy and non-natural use of property were also cited as grounds.
Legal Issues
Is there property in a spectacle?
Ruling
The Court rejected the proposed principle that there was property in a spectacle.
Latham CJ: I find difficulty in attaching any precise meaning to the phrase property in a
spectacle. A spectacle cannot be owned in any ordinary sense of that word. Even if
there were any legal principle which prevented one person from gaining an advantage for
himself or causing damage to another by describing a spectacle produced by that other
person, the rights of the latter person could be described as property only in a
metaphorical sense.
The Court did not find that any nuisance was caused.
McTiernan J: It is not shown that the broadcasting interferes with the use and
enjoyment of the land or the conduct of the race meetings or the comfort or enjoyment
of any of the plaintiff's patrons. Indeed, it appears quite impossible that any such result
would be caused by the action of Angles in standing on this platform aloof from the
racecourse, observing the races and talking into a microphone or telephone. The principle
upon which liability for acts in the nature of nuisance is founded is not to be restrained by
the instances in which that liability has been found to exist. The list of acts which may
give rise to an action on the case in the nature of nuisance is not closed against
broadcasting. But to broadcast a lawful description of what is happening on premises
cannot be an actionable nuisance at least unless it causes substantial interference with
the use and enjoyment of the premises.
However, the Court did acknowledge a legal right to privacy.

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LJP Investments v Howard Chia Investments (No 2) (1989)

Facts
The defendant carryied out a commercial development of its property, and in the course
of that development has commenced erection of a wall along the boundary between the
two properties. Scaffolding extended 1.5m into the airspace over the plaintiffs land.
The plaintiff's solicitors wrote to the defendant's solicitors advising that the defendant
would consent to the erection of the scaffolding only on terms set out in that letter,
which included a lump sum payment of around $30,000, plus in addition a rental
payment. They considered the amount sought to be unreasonable and excessive.
Legal Issues
Must there be actual interference with airspace in order to amount to trespass?
Ruling
The encroachment amounted to trespass and the injunction was granted. Intrusions into
airspace may amount to trespass to land if the intrusion is at a height potentially
necessary for the ordinary use and enjoyment of the occupier. In general a person should
not be permitted to use the land of another for commercial gain simply because it causes
no significant damage to the land.
Hodgson J: If the defendants submission is to the effect that entry into airspace is a
trespass only if it occurs at a height and in a manner which actually interferes with the
occupiers actual use of land at the time, then I think it is incorrect. In my view, the rule
stated in Bernstein of Leigh (Baron) v Skyviews & General Ltd by Griffiths J was rather that
a trespass occurred only if the incursion was at a height which may interfere with the
ordinary user of land, or is into airspace which is necessary for the ordinary use and
enjoyment of the land and structures upon
I think the relevant test is not whether the incursion actually interferes with the
occupiers actual use of land at the time, but rather whether it is of a nature and at a
height which may interfere with any ordinary uses of the land which the occupier may see
fit to undertake.
In the present case the only act which could be considered to disentitle the plaintiffs is
what is said to be the unreasonable demand for payment. There is no substantial injury
caused to the plaintiffs, and compensatory damages would probably be nominal only. I do
not think an injunction could be said to be greatly oppressive to the defendant: the
defendant knowingly put itself in a position where it needed to use the first plaintiff's
land in order to carry out a commercial development, and I think the law establishing that
what the defendant did was a trespass was reasonably clear, so that the defendant has
not been taken by surprise in this regard.

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