Lord Bernstein of Leigh v Skyviews & General Ltd

A case on right of air space.

Facts of Case
P (Sidney Lewis Baron Bernstein of Leigh): Owner and resident of a country house and its surrounding land. D (Skyviews & General Ltd.) : Small company having business to take aerial photograph of properties and offer them for sale to the owners. (17 years). Aug 1974, D took aerial photographs of Ps house from a height of several hundred feet. The photos were taken without permission.

Facts of Case
D offer to sell the photograph to P. P wrote to complain that photographing his house without his permission was invasion of privacy and demanded to hang over or destroy all prints of his house. Unfortunately, the letter was not seen by D. March 1975, solicitor wrote to D alleging that D had trespassed into Ps air space thus invaded his privacy. Again, D did not saw the letter.

Facts of Case
June 1975, received a writ by statement of claim that D wrongfully entered the air space above Ps premises and were guilty of trespass and invasion of privacy. D admit that they took aerial photograph but deny that they entered the airspace above premises. Alternatively, if they had, they had his implied permission to do so.

Issue: Whether the D flew over Ps land to take photographs. Based on the evidence, found that D had flown over Ps land.

Issue : Does P has the right over space above premises?

Latin maxim cujus est solum ejus est usque ad coelum in 13th century, used by English law. (Whose is the soil, his is also that which is above it) Land includes structures attached to adjoining land such as signs, wires and telegraph. Right of owner in air space immediately adjacent to surface of land. P claims that owner of the land is also owner of the air space above the land, has the right to exclude any entry into the air space above his land.

Judgment
Lord Wilberforce in Comr for Railways v Valuer General: There is no authoritative pronouncement that land means the whole of the space from centre of the earth to the heavens, so sweeping, unscientific and unpractical doctrine is unlikely to appeal to common law mind. supported in Sovmots Investments Ltd v Secretary of State for the Environment.

Judgment
Rights of owner to enjoy the use of his land vs Rights of public to enjoy advantage of science offers in the use of air space Balance : The rights of a land owner is restricted to the extend of a height reasonably necessary for ordinary use and enjoyment of his land and the structures upon the land. Above the height, the owner has no greater rights in the air space than any other member of the public.

Judgment
Court interpret : Trespass will be committed by the aircraft to the airspace only if they fly so low and come within the area of ordinary user. Distinguish : (i) there is no right to erect structures overhanging or passing over neighbours land. (ii) there is right for passage of aircraft at a height which does not affect the user of land.

Judgment
Even if it is a trespass, there is still further defence under Civil Aviation Act 1949, S.40(1) No action in respect of trespass and nuisance should be taken by reason of the flight of an aircraft over any property at a reasonable height above the ground. by reason only of the flight the flight of aircraft above property can be preclude from been brought an action, but not the activity carried on by or from the aircraft.

Judgment
Eg. : Emission of vast quantities of smoke the polluted the atmosphere and interfered with Ps use and enjoyment of land actionable nuisance. Aerial photographer ? Taking an aerial photograph could no be regarded as an actionable nuisance as it does not deprive the P from enjoying the uses of the land.

Decision
Ds aircraft did not infringe any rights in the Ps air space and thus, NO TRESPASS was committed. Even if there is trespass, P is prevented from bringing any action in respect of that trespass by the terms of S.40 (1) of Civil Aviation Act 1949.

Principle
The case established that the rights of a land owner over his land extend only to a height reasonably necessary and lawful for the ordinary use and enjoyment of his land and the structures upon the land. The owner has no greater rights in the air space beyond that reasonable and lawful height than any other member of the public.

National Land Code 1950

S 44 of NLC illustrates that the right to enjoy ones land is not absolute but an exclusive use and enjoyment of land. S 44 (1) (a): the exclusive use and enjoyment of so much of the column of airspace above the surface of the land, and so much of the land below that surface as is reasonably necessary to the lawful use and enjoyment of the land.

Malaysians Civil Aviation Act 1969

S 19 (1): No one shall lie in trespass or in respect of nuisance, by reason only of the flight of aircraft over any property at a height above the ground, which having regards to the wind, weather, and all circumstances of the case is reasonable. UK Civil Aviation Act 1969 S 40 (1): 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 wind, weather, and all circumstances of the case is reasonable, Protection extends to all flights provided that they are at a reasonable height and comply with the statutory requirements.

Opinion
We find that the court made a good decision though the maxim cujus est solum ejus est usque ad coelom et ad inferos has its value in protecting land owners right.

Opinion
1. Whenever technology has changed human capabilities, the law has had to adapt. The court found that there is no direct authority on the question arise. Planes were soon found routinely trespassing, and claimants thus can rush to court to make a fast buck. 2. Such encroachment of space does not interfere possession and enjoyment of land. - Such displacement and exclusion of rights of landowner only involves the space above the reasonable necessary ordinary use and enjoyment of land. - Law provides an action if there is other activity that constitutes trespass or nuisance or other tort. E.X. deliberate emission of vast quantities of smoke