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Bernstein v Skyviews & General Ltd [1977] EWHC QB 1 High Court

The defendant company took aerial photographs of properties and offered to sell them to the owners of the properties in the photos. The claimant owned Coppings Farm in Kent and complained that the photographs were taken without his consent, was an invasion of his privacy and had been obtained by trespassing onto his airspace. He demanded the negatives should be handed over to him or destroyed.

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. Even if there was an action for trespass, this would not provide a remedy in relation to the photos as there was no law against taking a photograph. The taking of a photograph could not turn an act which was not trespass into trespass. 

Griffiths J:

If the latin maxim (Cujus est solum, ejus est usque ad coelum et ad inferos– whoever owns the soil it is theirs up to heaven and down to hell)were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden. 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.

Back to lecture outline on rights above and below the surface of land in land law