Landowner’s claim against aerial photographers for trespass and invasion of privacy — Extent of owner’s rights to airspace above his property — Maxim ‘Cujus est solum ejus est usque ad coelum et ad inferos’ — Rights in airspace not unlimited — Restricted to airspace necessary for ordinary use and enjoyment of the land and structures on it — Civil Aviation Act 1949 — Landowner’s action fails
This was a
claim by Lord Bernstein for damages against Skyviews & General Ltd, who, he
alleged, trespassed in the airspace above his property, Coppings Farm, Leigh,
Kent, and invaded his right to privacy when they took an aerial photograph of
the property in August 1974.
Charles Gray
(instructed by Turner, Peacock) appeared for the plaintiff, and L D Lawton QC
and Gerald Lumley (instructed by Levi & Co, Leeds) represented the
defendants.
Giving
judgment, GRIFFITHS J said Skyviews were a company who took aerial photographs
of properties. For this purpose they sent photographers on survey flights.
During these flights a number of properties would be photographed and later the
photographs would be offered for sale to the owners. Lord Bernstein complained
when he was offered an aerial photograph of his country home, Coppings Farm, in
Kent. He said it was taken without his consent and was a gross invasion of his
privacy. He demanded that the prints and negative should be handed over to him
or destroyed. Mr Arthur Ashley, managing director of Skyviews, said if he had
known of this request he would have undertaken to destroy the photograph and
negative and not to take another similar photograph in the future. However,
Lord Bernstein’s letter was answered by an 18-year-old secretary, who offered
to sell him the negative for £15. After further letters Lord Bernstein started
proceedings claiming that Skyviews wrongfully entered the airspace above his
premises in order to take the photograph of his house. He claimed they
trespassed and committed an actionable invasion of his right to privacy.
Skyviews, who admitted taking the photograph, denied entering the airspace to
do so. They claimed it was taken while the aircraft was flying over adjoining
land. Skyviews, who instructed their pilots to photograph buildings, the owners
of which might prove likely customers, claimed that their photograph was taken
at a height of some 630 ft and 30metres outside the boundary of Coppings Farm.
Lord Bernstein, who had sent an aerial photographer up in a helicopter to try
to recreate the Skyviews photograph, claimed that it would have been taken at
around 1,000 ft from 30 ft inside the boundary. The pilot of the plane from
which the Skyviews photograph was taken in 1974 was not available to give
evidence. However, on any view of the evidence the plane would have flown close
to the border of Coppings Farm at the time the photograph was taken and the
probabilities were that at some time it had flown over the land. He (his
Lordship) found that the land had been overflown for the purpose of photography
without Lord Bernstein’s consent.
Relying on the
old Latin maxim Cujus est solum ejus est usque ad coelum et ad inferos (whose
is the soil his is also that which is above and below it), Lord Bernstein
claimed the right to exclude any entry into airspace above his property. The
maxim, first coined in the 13th century in Bologna, had been used by English
judges in a number cases concerned with structures attached to adjoining land —
overhanging buildings, signs, telegraph poles and the like.
It was well
established by authority that an owner had certain rights in the airspace above
his land. The Court of Appeal did not doubt the right of a landowner to cut a
wire placed over his property in Wandsworth Board of Works v United
Telephone Co (1884) 13 QBD 904. In Gifford v Dent (1926) 71
SJ 83 it was held by Romer J that it was a trespass to erect a sign projecting
4 ft 8 in over the plaintiff’s forecourt. In Kelsen v Imperial
Tobacco Co [1957] 2 QB 334 McNair J granted a mandatory injunction ordering
the defendants to remove a sign which projected only 8 ft over the plaintiff’s
property. Strong reliance was placed on the last case by Lord Bernstein. But
his Lordship doubted if McNair J’s intention was to hold that the plaintiff’s
rights in airspace continued to an unlimited height. He had been
nuisance. This had been indicated by the judge’s reference to Winfield on
Tort (6th ed p 380) in which the author held that trespass was limited to
the height at which it was contemplated that an owner might be expected to make
use of the airspace as a natural incident of the user of his land.
Lord
Ellenborough in Pickering c Rudd (1815) 4 Camp 216 said it would
not be a trespass to pass over a man’s land in a balloon. Lord Wilberforce in Commissioner
for Railways v Valuer-General [1974] AC 328, at 351 said that it was
unlikely that such a sweeping, unscientific and unpractical doctrine as that
‘land’ meant the whole of the space from the centre of the earth to the heavens
would appeal to the common law mind. 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 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 upon it, and to declare that above that height he had no greater
rights in the airspace than any other member of the public.
Applying this
test to the facts of this case, his Lordship found that, even though Skyviews’
aircraft had flown over Lord Bernstein’s property, it did not infringe any of
Lord Bernstein’s rights to airspace, and thus no trespass was committed. Lord
Bernstein had complained, not that the aircraft had interfered with his use of
his land, but that a photograph was taken. There was no law against taking a
photograph, however, and the taking of a photograph could not turn an act which
was not trespass into trespass. Even if Lord Bernstein had succeeded in
establishing that the infringement of the airspace above his land constituted a
trespass he would only have achieved a sterile remedy. For there would still be
nothing he could do to prevent Skyviews taking a virtually identical photograph
of his property from adjoining land, provided they took care not to cross his
boundary and were taking it for an innocent purpose.
A further
defence had been raised under the Civil Aviation Act 1949. He (his Lordship)
read section 40 (1) as giving protection from actions of trespass or nuisance
to all flights which were at a reasonable height and complied with the
statutory requirements.
At the same
time, however, the present judgment should not be understood as deciding that
in no circumstances could a successful action be brought against an aerial
photographer to restrain his activities. The judgment was far from saying that
if a plaintiff was subjected to the harassment of constant surveillance of his
house from the air, accompanied by the photographing of his every activity, the
courts would not regard such a monstrous invasion of his privacy as an
actionable nuisance for which they would give relief.
The action
failed and there would be judgment for the defendants.
