LAWS3111 Case Notes Lecture 1 - Title to Land

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 ove r and took photos of Bernstein’s 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 t ake the photograph of his house. The evidence showed that Skyviews had definitely flown directly over ove r 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 c oelum whic h is above and below be low it) et ad inferos (whose is the soil his is also that which 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 neces sary for the ordinary use and enjoyment of the land. It was held that the rights of landowners did not extend to an unlimited u nlimited 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 w ay 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 s tructures upon it, and to declare that above that height he had no greater rights in the airspace a irspace 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 eve ry activity, the courts would regard such an invasion of privacy as an actionable nuisance for which they might give relief. re lief.

University of Queensland

LAWS3111 – Property Law Property Law A

www.law-student.org

Star Energy Weald Basin v Bocardo (2010) Facts

Star Energy bored for petroleum by sinking wells wel ls into the substratum by means of drilling. The wells may be drilled diagonally rather than vertically from the well we ll head. The apex of the oil field lay beneath Bocardo's land. They sunk three wells wel ls at depths of about 1,300, 800 and 950 feet beneath the surface respectively. They did not seek see k 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 d iffer 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 o f 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 w orth 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 strat a through which the three wells… pass. ”



www.law-student.org

Davies v Bennison (1927) Facts

A man standing on his own land shot and killed a c at 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 he r own yard was found to have exacerbated ex acerbated the plaintiff’s neurasthemia 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 t o interfere interfere directIy and illegally with ownership.” “It seems an absurdity to say that if I fire at another’s 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 scien ce of the Common Law … If the hovering aeroplane is perfected the logical outcome of Lord Ellenborough’s dictum would be that a man might hover as long as he pleased at a yard, or foot, or an inch, above his neighbour’s soil, and not be a

trespasser, yet i f he should touch it for one second he would be.”



www.law-student.org

Clifton v Viscount Bury (1887) Facts

An action was brought to restrain the 12 th Middlesex Volunteer Corps, of which Viscount Bury was commanding officer, from shooting over a range on Wimbledon-common Wimbledon -common to the detriment of Major-General Clifton ’s 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. 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 c ommons 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 fo rm part of the common, and s 106 of the Act seemed s eemed 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 plaintiff ’s land so as to materially interfere with the plaintiff ’s 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 y ard 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 r ise 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 be ing 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.



www.law-student.org

Kelsen v Imperial Tobacco Co (1957) Facts

Kelsen held a lease on assignment for a tobacco tobacc o 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 whic h were mounted on a frame which fixed against the wall. The boards projected four inches into the property. Kelsen’s 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 plaintiff’s knowledge, which protruded into Kelsen ’s airspace by eight inches. From time to time, the defendant’s servants had access to the sign from the plaintiff’s 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 b rought 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 sev eral 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 landlord ’s consent to the new sign could c ould not affect the plaintiff ’s right to the airspace. When the landlord consented to the sign, he had already given g iven away the airspace rights to the plaintiff via the lease. The landlord ’s letter also did not create a real right in derogation of Kelsen ’s rights. No easement was created. Thirdly, by allowing the sign to remain on the building did not estop es top him from subsequently requiring it to be removed. On the facts, f acts, Imperial Tobacco had not been induced by the Kelsen’s conduct to continue to display the sign, not had they sought Kelsen’s 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 plaintiff ’s airspace by this sign. ”



www.law-student.org

Woollerton and Wilson v Richard Costain Ltd (1970) Facts

Richard Costain Ltd were building contractors who installed a high crane on o n a site to assist with the building work. From time to time, about 50 feet of o f the crane jib extended over the plaintiff’s land at a height of about 50 feet above the plaintiff’s 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 exerc ised 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 plaintiff ’s 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. ” so , on what terms, “In considering whether or not an injunction should be granted an, if so, 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 r eason 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.”



www.law-student.org

Yanner v Eaton (1999) Facts

Yanner was a member of the Gunnamulla clan of Aboriginal Australians Australians who used a traditional form form of harpoon to catch two tw o 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 f or 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 invalid under s 109 of the Constitution? Co nstitution? Did s 211 of the Native Title Act apply? apply? Ruling

Gleeson CJ, Gaudron, Kirby and Hayne JJ: “The word ‘property’ is often used to refer to something that belongs to another. 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 is treated as a ‘bundle of rights ’.” The High Court upheld the findings that: (a) the exercise or enjoyment of native native title rights rights and interests in relation relation to the land land or waters where the crocodiles were taken consisted co nsisted of or included hunting or fishing; (b) the State law restricted restricted those activities other than in accordance with a licence; (c) the Fauna Act was was not one that conferred rights or interests only on ATSI peoples; (d) accordingly, the Fauna Act did 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 r iver as is owns furniture in the dominium. The state as a corporation does not own a river 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 on ly an incident of the nineteenth-century dogma that everything must be owned.”



www.law-student.org

Delgamuukw v British Columbia (1997) Facts

The appellants claimed title to a plot of land in i n 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 fe deral 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 a rises 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 c an 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 co mmon 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 te rms of their traditions and laws.



www.law-student.org

Graham v KD Morris & Sons Pty Ltd (1974) Facts

The defendant was constructing a building upon land which adjoined the plaintiff ’s 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 plaintiff’s 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, injunction, the defendant’s solicitors wrote a letter to the plaintiff’s 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 ag ainst 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 plaintiff’s 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 c ircumstances of the case. (4) That the defendant should be restrained until the trial of the action acti on from trespassing on the plaintiff’s land by virtue of its crane jib. Campbell J: “The offer to pay ‘reasonable compensation’ made not only after the institution institution of the action but also after about two months’ notice of the alleged a lleged trespass had been given to the defendant to bring the trespass to an end, has not altered the conclusion to which I have come c ome for other reasons, namely, to grant the injunction. ” “The trespass here is neither negligent or involuntary … In my opinion, the invasion of the plaintiff’s airspace by t he 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 nervo usness 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 tha t 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. ”



www.law-student.org

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 broadcasting station to construct a platform from which w hich 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. w ord. Even if there were any legal principle which prevented one on e person from gaining an advantage for himself or causing damage to another by describing a spectacle produce d by that other person, the rights of the latter person could be described as property proper ty 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 n ot 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. broadcasting. But to broadcast a lawful description of what is hap pening on premises cannot be an actionable nuisance at least unless it causes c auses substantial interference with the use and enjoyment of the premises. ” However, the Court did acknowledge a legal right to privacy.



www.law-student.org

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 plaintiff’s land. The plaintiff's solicitors wrote to the defendant's solicitors advising that the defendant would consent to the erection of the scaffolding sc affolding only on terms set out in that letter, which included a lump sum payment of around $30,000, plus in addition a ddition a rental payment. They considered the amount sought to be unreasonable and excessive. exces sive. 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 he ight 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 c ommercial gain simply because it causes no significant damage to the land. Hodgson J: ““If the defendant’s 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 occupier’s occupier’s 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 w hich may interfere with the ordinary user of land, or is into airspace which is necessary neces sary 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 occupier’s occupier’s 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 c ommercial 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. ”



www.law-student.org

LAWS3111 Case Notes Lecture 1 - Title to Land

Recommend Documents