NOTES OF CASES
| Date | 01 September 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01298.x |
| Published date | 01 September 1970 |
NOTES
OF
CASES
TXESPASS
TO
AIR
SPACE
AND
INJUNCTIONS-
A
POINTLESS
RF,MEDY
IN
Woollerton
and
Wilson
Ltd.
v.
Richard Costah
Ltd.’
there
was a clash between private property rights and economic reality.
The outcome was a victory for economic reality; legal principle
and common sense being battered slightly in the process.
The defendants were a &m of building contractors engaged,
since October
1969,
in constructing a 800-foot-high post oflice build-
ing. Working space
on
the site was exceptionally
limited
and the
only practical crane which could be used in the circumstances was a
tower crane. The jib
of
the crane, when in operation, swung over
the plaintiffs’ factory
on
the other side of the street; when the
crane was not in operation it had to be left free to swing, and the
wind could also cause it to swing over the plaintiffs’ factory. There
was a maximum overhang of the jib arm
of
about Bty feet across the
plaintiffs’ premises at about fifty feet above roof level. The plain-
tiffs did not claim that the crane was in any way a nuisance
or
that
they were in fear
or
apprehension
of
any damage. They merely
issued a writ claiming an injunction and damages and then applied
for an interlocutory injunction to restrain the invasion
of
their air
space.
The plaintiffs’ claim in law was simple: their property rights
had been violated by the trespass and
so
they were entitled to
damages. But as there was
no
actual
or
threatened damage it was
argued that only nominal damages could be recovered; such nominal
damages would be an inadequate remedy, and
so
a clear case existed
for claiming an injunction.=
The defendants admitted the trespass.
No
doubt they would
also have agreed with two other propositions. First, the plaintiffs
had a right to refuse to allow the defendants to go
on
or
over their
land: in the absence of statutory authority
’
or
private agreement
they had no right to enter and the court had
no
inherent jurisdiction
to grant a licence to the defendants over the plaintiffs’ land.
Secondly, the position cannot be affected merely because the plain-
*
[1970]
1
W.L.R.
411;
[1970]
1
All
E.R.
483,
Stamp
J.
a
It is not the
purpose
of
this
note
to
discuss the question
of
nominal damages.
However, it is submitted that the learned judge was wrong if
he
assumed
that
in
an
action for trespass,
unless
actual damage can
be
shown,
only
nominal damages can be awarded. There
is
power
to
award substantial damages
and it should have
been
possible to award them
in
this
mse.
See
Street,
Prin-
ciples
of
the
Law
of
Damages
(1962),
pp.
14-18.
3
e.9. Cartwight
v.
Post
Ofice
[1969]
2
Q.B.
62
(C.A.).
552
SEPT.
1970
NOTES
OF
CASES
558
tiffs are unreasonable
or
malicious in withholding their li~ence.~
The law has been stated thus:
‘‘.
.
.
(i)
If
A
proves that his proprietary rights are being wrong-
fully interfered with by
B,
and that
B
intends to continue his
wrong, then
A
is prima facie entitled to an injunction, and he
will
be
deprived of that remedy only
if
special circumstances
exist, including the circumstance that damages are an adequate
remedy for the wrong that he has suffered.”
How, then, could the defendants avoid submitting to an in-
junction and to all the economic consequences which would follow.
There was uncontradicted evidence that
if
the tower crane was
required to be removed, all building operations would be brought to
a halt,
it
would be necessary to redesign the building and the
contract period might be extended by twelve months. The result
was awaited with interest and concern by the construction industry,
and the judge was obviously not unaware of the implications.
The defendants could have argued,
no
doubt, that there was in
fact
no
trespass to the plaintiffs’ land.
A
landowner can
no
longer
rely upon the ancient maxim
cujus est solum, ejus est usque
ad
coelum et
ad
inferos
and
so
claim a right to all the air space above
his
land:
it
is now generally accepted that at common law the only
claim is to that part of the air space above land which is requisite
for the proper use and enjoyment of the 1and.O Even
so,
it has
been held that a land-owner could sue persons who were using a
firing range where bullets passed some seventy-five feet above the
surface of the land without striking the plaintiff’s land.’ Perhaps
the defendants rightly conceded trespass to air space.
The only other arguments which the defendants could raise
were based
on
economics and past practice. First, the importance
and cost of the project-this in
itself
may be relevant in deciding
whether the tort of nuisance has been committed but
it
has
no
legal significance when the action is for trespass. Secondly, the
fact that the defendants had offered the plaintiffs
E250,
but that
they had indicated that they might only be prepared to consent for
E50
a week-here, too, the judge accepted that the plaintiffs were
entitled to exploit to the full the fact that the air space in which
the jib
of
the crane swung had by reason of the defendants’ vital
requirements suddenly assumed a very artificial value. Thirdly,
the evidence
on
behalf of the defendants that
on
no
previous
occasion had any neighbouring proprietor, over whose property
4
Cf.
the famous remarks
of
Lord Halsbury
L.C.
in
Bradford
v.
Pickles
[1895]
A.C.
587,
594:
“
If
it wss
8
.lawful
act,
however ill the motive might be,
he
had
a
right to
do
it.
If
it
w88
an unlawful act, however
good
his motive might
be, he would have no right to
do
it. Motives and intentions in
such
a
question
. . .
seem to me to be ebeolutely irrelevant.”
5
Pride of Derby Angling Association
V.
British
Celanese
Co.
[1953]
Ch.
149, 181
per
Sir R. Eversbed M.R.
6
Kelsen
v.
Imperial
Tobacco
Co.
“571
9
Q.B.
334.
7
Clifton
v.
Viscount
Bury
(1887)
4
T.L.R.
8.
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