Above and below land
Physical Limits of Land
To whomsoever the soil belongs, he owns also to the sky and to the depths
An owner’s rights are not limited to the surface of the land itself extends to above and
below the land as well
o Above land: Kelsen v Imperial Tobacco Co
An injunction was granted forcing the tobacco company to take down a sign that
encroached on the air space above Kelsen’s shop
o Below land: Star Energy Weald Basin Ltd v Bocardo SA
Damages were awarded to Bocardo as Star Energy had drilled diagonally in order to
extract oil from an area ranging from below the surface of Bocardo’s land
However, an owner does not have complete and unlimited control over the area both above
and below the surface of the land
o Above land: Bernstein v Skyviews
No damages were awarded to Bernstein when Skyviews flew an aircraft above his
land without his permission
Need to balance the rights of an owner to enjoy the use of his land against the
rights of the general public to use air space ‘restrict the rights of an owner in therestrict 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’
[Griffiths J in Griffiths J in Bernstein]
But Scott J in Achor Brewhouse Developments Ltd v Berkley House differentiates
between overhanging structures placed on or attached to the land vs. overflying
objects
‘restrict the rights of an owner in theIf an adjoining owner places a structure on his land that overhangs the neighbour’s
land, he thereby takes into his possession air space to which his neighbour is
entitled. That, in my judgment, is trespass. It does not depend upon any balancing
of rights...The difficulties posed by overflying aircraft or balloons, bullets or missiles
seem to me to be wholly separate from the problem which arises where there is
invasion of air space by a structure placed or standing upon the land of a neighbour.’
o Below land: Star Energy Weald Basin Ltd v Bocardo SA
Lord Hope: Owner’s rights extend to the point where the idea of ownership
becomes absurb
Physical Limits of Land
To whomsoever the soil belongs, he owns also to the sky and to the depths
An owner’s rights are not limited to the surface of the land itself extends to above and
below the land as well
o Above land: Kelsen v Imperial Tobacco Co
An injunction was granted forcing the tobacco company to take down a sign that
encroached on the air space above Kelsen’s shop
o Below land: Star Energy Weald Basin Ltd v Bocardo SA
Damages were awarded to Bocardo as Star Energy had drilled diagonally in order to
extract oil from an area ranging from below the surface of Bocardo’s land
However, an owner does not have complete and unlimited control over the area both above
and below the surface of the land
o Above land: Bernstein v Skyviews
No damages were awarded to Bernstein when Skyviews flew an aircraft above his
land without his permission
Need to balance the rights of an owner to enjoy the use of his land against the
rights of the general public to use air space ‘restrict the rights of an owner in therestrict 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’
[Griffiths J in Griffiths J in Bernstein]
But Scott J in Achor Brewhouse Developments Ltd v Berkley House differentiates
between overhanging structures placed on or attached to the land vs. overflying
objects
‘restrict the rights of an owner in theIf an adjoining owner places a structure on his land that overhangs the neighbour’s
land, he thereby takes into his possession air space to which his neighbour is
entitled. That, in my judgment, is trespass. It does not depend upon any balancing
of rights...The difficulties posed by overflying aircraft or balloons, bullets or missiles
seem to me to be wholly separate from the problem which arises where there is
invasion of air space by a structure placed or standing upon the land of a neighbour.’
o Below land: Star Energy Weald Basin Ltd v Bocardo SA
Lord Hope: Owner’s rights extend to the point where the idea of ownership
becomes absurb
