Court: Queen’s Bench Division
Judgment Date: 10 February 1977
Where Reported: [1978] Q.B. 479; [1977] 3 W.L.R. 136; [1977] 2 All E.R. 902
Legal Issue in Bernstein v Skyviews & General Ltd
In Bernstein v Skyviews & General Ltd, the core legal issue revolved around the extent of property rights in airspace above one’s land.
Specifically, the case questioned whether a landowner’s property rights extended indefinitely upwards, thus making it an actionable trespass if an entity such as an aircraft entered this space without permission.
This issue tested the traditional maxim “Cuius est solum, eius est usque ad coelum et ad inferos” (for whoever owns the soil, it is theirs up to the sky and down to the depths), assessing its applicability in the context of modern aviation and property law.
Material Facts in Bernstein of Leigh v Skyviews & General Ltd
The plaintiff, Mr. Bernstein of Leigh, owned a property in Cheshire, England. Skyviews & General Ltd, the defendant, was a company engaged in aerial photography. In 1974, without Mr. Bernstein’s consent, Skyviews flew over his property and took aerial photographs.
Subsequently, they offered to sell these photographs to Mr. Bernstein. He responded by initiating a legal action for trespass and nuisance, arguing that Skyviews’ unauthorised entry into the airspace above his property constituted an infringement of his property rights.
The case hinged on the interpretation of a landowner’s rights to the airspace above their property. The plaintiff contended that his property rights extended indefinitely upwards, making any unauthorised entry into this space an act of trespass.
Skyviews, on the other hand, argued that such an interpretation was unreasonable in the modern era, especially considering the realities of aviation and the impracticality of landowners exerting control over high-altitude airspace.
Judgment in Bernstein of Leigh v Skyviews & General Ltd
The High Court ruled in favour of Skyviews, dismissing Mr. Bernstein’s claim of trespass. The court found that a landowner’s rights to the airspace above their property were not unlimited but extended only to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.
The court acknowledged the traditional principle that a landowner has rights to the airspace above their land but clarified that this principle could not be applied without limitation. It was deemed impractical and unreasonable to extend such rights indefinitely upwards, especially in an age of commercial aviation.
Therefore, the court concluded that the act of taking photographs from an aircraft flying at a considerable height did not constitute trespass.
Reason for the Decision in Bernstein of Leigh v Skyviews & General Ltd
The decision in Bernstein v Skyviews was heavily influenced by the need to reconcile traditional property law principles with the practical realities of modern aviation.
The court recognised that the adage “Cuius est solum, eius est usque ad coelum et ad inferos” was outdated and incompatible with contemporary society, where aircraft routinely traverse the airspace above private properties.
The court’s reasoning was centred on the notion of reasonableness, a key concept in property law. It was deemed unreasonable and contrary to public interest to grant landowners rights over all airspace above their land up to an infinite height, as this would severely restrict aviation and other activities in the upper airspace.
Such an interpretation would lead to a multitude of trespass claims against airlines and other entities regularly using the airspace, resulting in an unworkable situation.
The decision in Bernstein v Skyviews & General Ltd also took into account the nature of the intrusion. The court noted that the aircraft flew at a height that did not interfere with the normal enjoyment of the land.
There was no disturbance, nuisance, or damage caused by the flight or the act of taking photographs. This lack of interference with the use and enjoyment of the property was a crucial factor in determining that there was no trespass.
Furthermore, the court balanced individual property rights against the broader needs and rights of the public. It recognised the importance of ensuring that property rights did not obstruct the development and utilisation of air travel, an essential aspect of modern life and commerce.
Additionally, the court considered the legal and practical aspects of regulating airspace. Granting extensive rights to landowners over airspace would conflict with the regulatory regime governing aviation, which is managed for the benefit of the public and operates under the premise that the airspace is a public highway.
Conclusion
Bernstein of Leigh v Skyviews significantly shaped the legal understanding of property rights in relation to airspace. The judgment established that while property owners have rights to the airspace above their land, these rights are limited to the height necessary for the ordinary use and enjoyment of the land.
The ruling in Bernstein of Leigh v Skyviews & General Ltd reflected a pragmatic approach, harmonising traditional property law principles with the realities of modern aviation and societal needs.
This case serves as a landmark in balancing individual property rights with public interests, especially in an era where air travel and activities in the upper airspace are integral to everyday life and the global economy.
