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Pickering v Rudd (1815) 4 Camp 216

The claimant erected a board on his property which protruded onto his neighbour’s property. The neighbour cut the board down along with a tree that had also grown on to his property.

Held:

The board did not constitute a trespass

Lord Ellenborough:

“if this board overhanging the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clausum fregit, at the suit of the occupier of every field over which his balloon passes in the course of his voyage. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is invaded. If any damage arises from the object which overhangs the close, the remedy is by an action on the case. Here the verdict depends upon the new assignment of excess in cutting down the tree.” 

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