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KembaraXtra-Case Law-Bernstein v Skyviews & General Ltd (1978)
Core Principle: A landowner's rights in the airspace above their land are limited to such height as is necessary for the ordinary use and enjoyment of their land. Beyond this "reasonable height," general flights do not constitute trespass.
Key Case: Bernstein v Skyviews & General Ltd (1978)
- Facts: Skyviews & General Ltd (S&G) flew over Mr. Bernstein's property, took aerial photographs of his house, and then offered to sell them to him. Bernstein sued for trespass.
- Decision (High Court, QBD): The court ruled that S&G had not trespassed. Bernstein's rights in the airspace were limited to what was necessary for the ordinary use and enjoyment of his land, and this was not infringed by the aerial photography at a reasonable height.
- Statutory Protection (per curiam): Section 76(1) of the Civil Aviation Act 1982 (formerly s 40(1) of the Civil Aviation Act 1949) provides protection for all flights conducted at a reasonable height.
- Encroachment from Overhanging Branches: A landowner can take action to prevent or abate nuisances like overhanging tree branches (e.g., Lemmon v Webb (1895)).
- Encroachment at Height: While trespass or nuisance actions are rare for objects above the reasonable height for ordinary use and enjoyment, specific encroachments can be actionable. For example, a swinging crane jib encroaching over land was successfully challenged in Wollerton and Wilson Ltd v Richard Costain Ltd (1970).
General Rule: Minerals found beneath the land generally belong to the landowner.
Exceptions to Mineral Ownership:
- Gold and Silver: Belong to the Crown (Case of Mines (1568)).
- Coal: Vests in the Coal Authority (formerly British Coal) under Section 1 of the Coal Industry Act 1994.
- Petroleum and Natural Gas: Vests in the Crown under Section 3(1) of the Petroleum Act 1998.
General Rule: If the original owner is unknown, chattels discovered in the land belong to the landowner, unless they qualify as "treasure" or the landowner has given permission to the finder.
The Treasure Act 1996: Provides a clear definition of "treasure" and determines ownership.
Definition of "Treasure" (Section 1(1)):
- Objects at least 300 years old when found:
- Non-coin objects: At least 10% by weight is precious metal.
- Coins (two or more): If part of a find of at least two coins, all at least 300 years old, with that percentage of precious metal.
- Coins (ten or more): If part of a find of at least ten coins, all at least 300 years old.
- Objects at least 200 years old when found: Belonging to a class designated by the Secretary of State as of outstanding historical, archaeological, or cultural importance (Section 2(1)).
- Objects that would have been "treasure trove" before the Act: Captures items that met the old definition.
- Associated objects: Any object found as part of the same find as another object that qualifies as treasure.
- When treasure is found, it vests (subject to prior interests and rights):
- In the franchisee, if one exists.
- Otherwise, in the Crown.
- The Act provides a much clearer definition of "treasure" compared to the old common law concept of "treasure trove."
- Old "Treasure Trove" Definition: Required a "substantial amount" of gold or silver and the intention of the original owner to reclaim the item (e.g., AG of the Duchy of Lancaster v GE Overton (Farms) Ltd (1982)). The Treasure Act 1996 removes the requirement for intention to reclaim.
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