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Laws2018 Rights above and below land cases
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Kelsen v Imperial Tobacco [1957] 2 QB 334 The defendant owned the freehold in premises from which he r an a wholesale tobacco business. He leased part of the premises to the claimant from which he r an a tobacconist shop and had a flat in which he resided. The defendant erected a sign that protruded into the claimant’ s airspace by four inches. Held: An injunction was gr anted to prevent the trespass of the airspace. Gifford v Dent (1926) 71 SJ 83 The claimant held a tenancy over a forecourt. The defendant erected an advertising sign which projected on to the claimant’ s forecourt by four foot eight inches. Held:Romer J . The projection on to the claimant’ s forecourt amounted to a trespass of the airspace. Anchor Brewhouse Developments v Berkley House Ltd [1987] EGLR 172 The defendant’ s crane o ver sailed on to the claimant’ s airspace abov e their land on a regular basis during the construction of a housing development. No damage w as caused. Held: claimant was entitled to an injunction to prevent the tre spass since trespass is actionable per se . Pickering v Rudd (1815) 4 Camp 216 The claimant erected a board on his property which protruded onto his neighbour’ s property . The neighbour cut the board down along with a tree that had also grown on to his property . Held: The board did not constitute a trespass Lord Ellenborough: “if this board overhanging the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass , at the suit of the quare clausum fregitoccupier of every field ov er which his balloon passes in the course of his voy age. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is inv aded. If any damage arises from the object which o verhangs the close, the remedy is by an action on the case. Here the verdict depends upon the ne w assignment of excess in cutting down the tree. ” Commissioner for Railways v Valuer-General [1974] AC 328 Privy Council Sever al appeals against a valuations giv en on properties for taxation purposes on the grounds that the valuations were too high as no account had been taken of the rights of land under the properties by the railw ay company a nd in some instances the rights above the land had been restricted to 20ft. Held: The appeal was allowed Lord Wilberforce in relation to rights above and below the land: “it was unlikely that such a sweeping, unscientific and u npractical doctrine as that 'land' meant the whole of the space from the centre of the earth to the heav ens would appeal to the common law mind. “ Bernstein v Skyviews & General Ltd [1977] EWHC QB 1 High Court The defendant company took aerial photogr aphs of properties and offered to sell them to the owners of the properties in the photos. The claimant owned Coppings F arm in K ent and complained that the photographs were tak en without his consent, was an invasion of his privacy and had been obtained b y trespassing onto his airspace. He demanded the negatives should be handed over to him or destro yed. Held: There was no trespass. A landowner only has rights in the airspace to such a height as is necessary for ordinary use and enjoyment of the land. Ev en if there was an action for trespass, this would not provide a remedy in relation to the photos as there w as no law against taking a
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