Private Nuisance and Trespass Flashcards
Kelsen v Imperial Tobacco [1957] 2 QB 334
trespass - ‘land’ - above the surface
An injunction was granted to prevent the trespass of the airspace.
The defendant owned the freehold in premises from which he ran a wholesale tobacco business. He leased part of the premises to the claimant from which he ran 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.
Bernstein v Skyviews [1978] QB 479
trespass - ‘land’ - above the surface
On the first point, Griffith J firmly rejected the most extensive understanding of the landowner’s control over airspace, invoking the social and economic consequences of his decision to explain his approach. A balance had to be struck between owners’ rights to use their land and the rights ‘of the general public to take advantage of all that science now offers in the use of air space’. The best way in which to strike that balance was to reject the maxim cujus est solum ejus est usque ad coelum et ad inferos, at least as far as airspace was concerned, and to enable the landowner to control airspace only to the extent needed to support the ‘ordinary’ use of the land.
Griffiths J found as a fact that Skyviews’ agent had flown directly above Lord Bernstein’s land. However, he held that this did not give rise to any action in trespass, for two reasons:
1.section 40 of the Civil Aviation Act 1949 provided a defence against actions in trespass that would otherwise have arisen at law; and
2.an intrusion into airspace at that height did not qualify as a trespass at common law.
Facts: The claimant, Baron Bernstein of Leigh, had a freehold title to a country house known as Coppings Farm. The defendant company, Skyviews, was a company that specialized in aerial photography. It used to take aerial photographs of land and sell the negatives to the landowners. In August 1974, Skyviews’ agents flew over Coppings Farm and took a photograph of Lord Bernstein’s house, which the company later offered to sell him.
Lord Bernstein strongly objected to having his house photographed without his consent. He brought an action in trespass against Skyviews, on the grounds that it had invaded the airspace above his house without his consent. The company argued that even if its flight path had taken it directly above Lord Bernstein’s land, this was not a trespass to land.
Star Energy v Bocardo [2010] UKSC 35
trespass - ‘land’ - below the surface
Quotes:
> 19. The problems that a rule in these terms might give rise to as man’s understanding of the earth’s structure improved, airspace began to be used for the passage of aircraft and means were developed to penetrate deep below the surface were not, of course, obvious in the 13th century. But the simple notion that each landowner is the proprietor of a column or cylinder of land that stretches down to the centre of the earth and upwards indefinitely into outer space is plainly no longer tenable.The earth is not flat, as the glossator may have supposed. A greater understanding of geology has taught us that most of the earth’s interior, due to extremes of pressure and temperature, is a complex and inhospitable structure that is beyond396man’s capacity to enter or make use of.*
>
> 26. In my opinion the brocard still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance. It is an imperfect guide, as it has ceased to apply to the use of airspace above a height which may interfere with the ordinary user of land
> 27. 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, extending from about 800 feet to 2,800 feet below the surface, 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.
Decision
-
Trespass Issue – Bocardo Won:
- The Court held that landownership extends to the subsurface unless legally transferred.
- Bocardo, as the landowner, was deemed in possession of the subsurface.
- Star had no statutory defence for trespassing on Bocardo’s land.
-
Damages Issue – Star Energy Won:
- Compensation should be assessed based on compulsory purchase principles, meaning Bocardo was entitled to fair compensation for loss, not Star’s gain.
- The Court applied the “no-scheme rule”, meaning Bocardo could not claim a high price just because its land was key to Star’s oil extraction.
- As the oil belonged to the Crown, Bocardo had no pre-existing commercial interest in it.
Facts: Bocardo owned land in Surrey above an oil field. Star Energy, holding a licence from the Crown under the Petroleum (Production) Act 1934, drilled wells diagonally from outside Bocardo’s land, passing through it underground (800–1,300 feet deep) without Bocardo’s permission. The wells caused no surface interference. Star did not seek statutory rights or permission from Bocardo.
The case raised two key issues:
- Trespass: Did drilling under Bocardo’s land amount to trespass?
- Damages: If so, how should compensation be assessed?
JA Pye (Oxford) Ltd v Graham [2002] UKHL 30
trespass - possession
Pye’s claim was defeated by adverse possession of the Grahams.The Grahams were in factual possession of the land as they were in occupation and had exclusive physical control. Pye was physically excluded from the land by the hedges and lack of key. They farmed the land in the exact way they farmed their own land. By remaining in possession and using the land in the way they thought best they had demonstrated an intention to possess. The fact that the Grahams were aware of Pye’s intended use of the property did not prevent them having the requisite intention to possess. The law on adverse possession does not infringe the European Convention of Human Rights..
Pye owned Henwick manor and a substantial amount of land. In 1977 he sold off the farmhouse and some of the land and retained the disputed land, which consisted of four fields, with a view to develop it in the future. There was an agreement with the buyer of the farmhouse to graze on the disputed land. In 1982 The Grahams purchased the farmhouse and in 1983 entered an annual grazing agreement in respect of the disputed land for which they paid £2,000. The following year, Pye refused to renew the agreement as he wished to apply for planning permission and thought it would be easier if the land was not in use. The Grahams were asked to vacate the land at the end of the agreement. However, the Grahams continued to occupy the land which was fully enclosed and the gate padlocked with a key being held by the Grahams. Pye never did apply for planning permission. The Grahams continued to use the land and the following year requested a new agreement but this was not accepted. The Grahams continued to use the land and gave up seeking to communicate with Pye as he was getting no reply to any correspondence. In 1999 Pye issued proceedings to gain possession of the land.
Manchester Airport v Dutton [2000] 1 QB 133
trespass - possession
reasoning: In making this argument, Laws LJ sketched the history of claims to possession of land in English law. Before its abolition by statute in 1852, claims to possession were made via the action of ejectment. Ejectment was available only to those with ‘a title to or an estate in’ the land. But, Laws LJ argued, the only reason for this was historical: when first introduced, ejectment was available to only leaseholders; freeholders were supposed to bring an older action, called ‘novel disseisin’. Since ejectment was procedurally easier than novel disseisin in many ways, the courts began to allow freeholders to use ejectment by pretending that they had granted leases to a fictional tenant (John Doe), on whose behalf they were suing. A claimant would say that a lease had been granted to John Doe, who had been ousted by another fictional person (Richard Roe), and that it was Richard Roe who had let the defendant into occupation. The courts treated these fictions as facts so that defendants could not dispute them. The focus was instead on whether the claimants had a title to the land of the kind that would support the story, that is, either a freehold title or a lease.
Laws LJ said that, because of this history, ejectment was focused purely on the remedies of leaseholders and freeholders. This did not mean thatonlyleaseholders and freeholders should be able to get the modern remedy of an order for possession; rather, he held, a court should have the power to grant the remedy of possession to a licensee—whether or not in occupation of the land—’if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys’. If a licensee was entitled to occupation, the available remedies should not depend on whether that licensee had actually gone into occupation or not. What mattered was whether what the defendant had done prevented the licensee from exercising the right of occupation. There was no principled distinction between:
> … a plaintiff whose right to occupy the land in question arises from title and one whose right arises only from contract. In every case the question must be, what is the reach of the right, and whether it is shown that the defendant’s acts violate its enjoymen
Held: The appeal was dismissed (Chadwick LJ dissenting). Laws LJ, with whom Kennedy LJ agreed, noted that it was already the law that a licensee in occupation of land could get an order for possession of that land against a later trespasser. There was some authority that this remedy was not available to a licensee who had not occupied the land, but Laws LJ considered this to be an unprincipled distinction. The only reason why law had ever distinguished between the two situations was a historical one, which no longer had a place in the modern law
Facts: Manchester Airport intended to build a second runway. To do this, it needed to cut down some of the trees in a neighbouring wood, owned by the National Trust. Dutton and others were protestors, seeking to prevent the felling of the trees and the building of the runway.
Without the consent of the National Trust, Dutton and other protestors went onto the land and camped there, building tree houses, ropewalks, and a tunnel. After they had done this, the National Trust entered into a contract with Manchester Airport. The Trust granted the Airport ‘a licence to enter and occupy [the land] … for the purpose set out in this agreement’. The purpose was to enable the Airport to carry out the works necessary for the construction of its runway. The agreement did not create, and could not have created, a lease, because statute prevented the National Trust from granting rights of exclusive possession over its land.
Manchester Airport brought an action seeking an order for possession of the land against Dutton and the other protestors. Steele J granted the order.
The protestors appealed to the Court of Appeal.
Ellis v Loftus Iron Co (1874) LR 10 C&P
trespass - interference
the owner of a stallion which kicked and bit a mare through a wire fence was held liable. It was held that negligence is altogether immaterial where any animal strays on land of any neighbour and commits a trespass. The owner of the animal is liable for the ordinary consequences of that trespass.
“If the defendant place a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it”
Eaton Mansions v Stringer Componia de Inversion
trespass - interference - adding things to land
A judge had been entitled to find that a tenant had no reasonable prospect of defending a claim for trespass made by a head lessee concerning the tenant’s installation of air-conditioning units on the roof of a block of flats. The freeholder and head lessee would not have consented to the installation of the units and the tenant had no right under the lease to place anything on the roof
Lemmon v Webb
trespass - interference - airspace or below
The House of Lords held in favour of the respondent. The overhanging branches were nuisance. The respondent was entitled to cut down the branches.
This Case is Authority For…
A person has the right to take action on their own land to abate a nuisance coming from another. There is no need for that person to give the other landowner notice of his actions
Facts
The appellant and respondent were neighbouring land-owners. Branches from the appellant’s trees overhung into the respondent’s garden. The respondent began cutting down the branches from within his garden. The appellant sued, arguing that the respondent was not allowed to cut the branches.
Lavender v Betts:
trespass - interference - remove or add things
trespass
remove doors and windows
Anchor Brewhouse Developments v Berkley House [1988] -
trespass - interference - airspace or below
The claimant was entitled to an injunction to prevent the trespass since trespass is actionable per se.
The defendant’s crane over sailed on to the claimant’s airspace above their land on a regular basis during the construction of a housing development. No damage was caus
Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 (at 322-323):
see in tort
Coventry v Lawrence [2014] UKSC 46:
see in tort
Williams v Network Rail per Terrance Etherton MR
private nuisance
The Court of Appeal dismissed Network Rail’s appeal against the first instance judge’s finding that Network Rail was liable to each of the claimants in private nuisance. However, the Court of Appeal held (with Sir Terence Etherton MR giving the only judgment) that the judge had been ‘wrong in principle’ (at [46]) to find that a fall in the value of each claimant’s land gave that claimant title to sue the defendant in private nuisance: ‘The purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset. Its purpose is to protect the owner of land…in their use and enjoyment of the land’ (at [48]). However, the Court of Appeal went on to hold that the claimants had suffered sufficient interference with their use and enjoyment of their respective landholdings as a result of the encroachment of Japanese knotweed from Network Rail’s land so as to be able to sue Network Rail in private nuisance for that encroachment. The Court of Appeal held that the presence of Japanese knotweed on someone’s land ‘imposes an immediate burden on the owner of the land in terms of an increased difficulty in the ability to develop, and in the cost of developing, the land, should the owner wish to do so’ (at [55]). As such, the presence of Japanese knotweed on someone’s land affects ‘the owner’s ability fully to use and enjoy the land. [It is] a classic example of an interference with the amenity value of the land’ (at [55]).
Each of the (two) claimants in this case owned a bungalow next door to land owned by Network Rail, the defendant. Network Rail’s land was infested with Japanese knotweed, a type of weed that is regarded with horror by house purchasers because (i) it is very hard to root out and destroy, and (ii) it is extremely invasive; for example, it can penetrate and grow up through concrete foundations. Network Rail made desultory efforts to deal with the knotweed on its land that did nothing to root it out, and the knotweed spread onto land belonging to each of the claimants, with the result that the value of their parcels of land diminished. It was held at first instance that this diminution in the value of the land belonging to each claimant meant that they had each suffered sufficient damage to sue Network Rail in private nuisance. The claimants were awarded: (i) an injunction, requiring Network Rail to deal properly with the Japanese knotweed on its land; (ii) damages for the cost of eliminating the Japanese knotweed on the claimants’ respective parcels of land; and (iii) £10,000 each to compensate them for the fact that even after the knotweed on the claimants’ land was eliminated, the claimants’ land would suffer a permanent fall in value of £10,000 because of prospective buyers’ fears that the knotweed might come back
B&Q plc v Liverpool and Lancashire Properties Ltd (2001)
private nuisance -actionable interference
adopted the test from Celsteel Ltd v Alton House Ltd (1985)
Blackburne J. held that the test of an actionable interference was not whether what the grantee was left with was reasonable, but whether his insistence on being able to continue the use of the whole of what he had contracted for was reasonable, and that it was not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would do things differently, unless the grantee’s preference was perverse or unreasonable. He also held that the fact that an interference with an easement was infrequent and, when it occurred, was relatively fleeting, did not mean that the interference could not be actionable. Note that this case concerned an expressly granted right of way.
The claimants had a lease of a unit on a retail park. The defendant landlord wanted to construct a large extension at the rear of a neighbouring unit. This area behind the units was subject to an expressly granted right of way in favour of the claimants. If the extension were built, the turning movements of the claimant’s vehicles would be made more difficult.
Celsteel Ltd v Alton House Ltd (1985)
private nuisance - actionable interference
The lessor (the first defendant) owned a multi-storey block of flats. It had granted a 99-year lease of a large part of the ground floor to an oil company (the second defendant). The lease authorised the oil company to build a car wash. The plaintiffs were lessees from the first defendant of flats in the same block and had a right of way to their garages on the ground floor. They brought an action against both the lessor and the oil company, claiming injunctions against both defendants preventing them from blocking the right of way by constructing the car wash. The Court of Appeal decided that the judge had been wrong to order an injunction against the lessor, restraining it from interfering with the plaintiffs’ right of way. This was because, having granted the 99-year lease, the lessor had no power to interfere any further with the plaintiffs’ right of way by the construction of the car wash.
Saint v Jenner
private nuisance - actionable interference
Held: This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car’s undercarriage.
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Kingsgate Development Projects Limited v Jordan [2017] EWHC 343
private nuisance - actionable interference
The judge then considered the three gates along the right of way. The judge accepted that the first gate leading from the main road had narrowed the right of way to 4.5m. However she did not regard this reduction nor the gate itself as constituting substantial interference since the gate was not locked and opened electrically with the push of a button. Similarly gate 3 which was not locked and separated farmland from domestic property was found not to amount to a substantial interference with Kingsgate’s right of way. However the judge ordered gate 2 which the Jordans had installed themselves to be removed on the basis that three gates over less than 100m was a substantial interference with Kingsgate’s right of way.
It seems therefore that the test of substantial interference will depend on the type of gate with gates requiring a code or a fob more likely to denote substantial interference and also the proximity of gates to each other.
The defendants, Mr and Mrs Jordan, had bought their property, Ferndown, near Great Missenden in Buckinghamshire as a home in 2012. The claimant company owned Kingsgate Farm, a disused poultry farm. Both parties agreed that Kingsgate had a right of way over the Jordans’ land by virtue of a conveyance dated 12 September 1960. However their disagreement related to the boundary between their respective properties with Kingsgate claiming ownership of a strip of land dividing the two areas of land. Kingsgate also claimed that the Jordans had reduced the width of its right of way and interfered with its use.
The trial went ahead under the Courts Shorter and Flexible Trials Scheme. This limits the documents before the court to those that each party relies upon and those requested by the other side. Both parties appointed chartered land surveyors as expert witnesses. By the end of the trial the experts had agreed on a plan which plotted the route of the original right of way from a 1961 aerial photograph. Further evidence came from the written statement of a former owner of Ferndown, a Mr James who had worked on the poultry farm and purchased the property in 1965. Mr James, now 93, provided a statement as to the true boundary between the two properties being “ 27 feet from a hedge that was in situ…” Despite Mr James being too frail to attend court, the judge gave his evidence considerable weight. She found that the legal boundary line to be in accordance with this statement and was consistent with the route plotted by the experts. Thus the right of way fell entirely within the Jordans’ land.
Dawes v Adela Estates [1970] 1 WLUK 78
private nuisance - actionable interference
Held, that there was no substantial interference with the plaintiff’s easement and that the matter of the postman could be met by a suitable undertaking by the defendants. (Pettey v Parsons [1914] 2 Ch. 653, [1914] 7 WLUK 54 applied).
The plaintiff sought an injunction restraining his landlord from allowing the outer door of the block of flats to remain locked because this interfered with his right of passage and that of his invitees and visitors. The locked door was no real obstacle to the plaintiff, who had a key, but had caused difficulties in regard to the delivery of post.
