Analysis of Bernstein of Leigh v Skyviews & General Ltd - Case Study Example

Case: Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479 The above case is based on the actions of the defendant who took an aerial photograph on the property belonging to the plaintiff (Lord Bernstein) in 1974 (Saleem, 2005). This was part of the defendant’s business to take aerial photographs of properties belonging to other people and later selling the photographs to the owners. Relevant facts of the case The first fact of the above case is that the property appearing on the aerial photograph taken by the defendant belonged to the plaintiff (Lord Bernstein). The second fact of the case is that an aerial photograph was taken by the defendant as part of his business as he had done for more than 17 years (Saleem, 2005). The third fact of the case was that the photograph was by the plaintiff taken by flying over the plaintiff’s land and thus the photograph was referred to as an aerial photograph. The fourth fact of the case is that after taking the aerial photograph of the property belonging to the plaintiff the defendant later brought the photograph to the plaintiff for selling but the plaintiff was aggravated by the photographs. The fifth fact of the case is that the defendants took the aerial photograph of the plaintiff’s house without his permission. The sixth fact of the case was that the plaintiff offered to settle the matter outside the court of law by ordering that the negatives and the print of his house be handed over to him or destroyed but all the his efforts were in vain. The seventh fact of the case was that the defendant did not receive any communication from the plaintiff regarding his desire to settle the matter outside the court of law. The eighth fact was that the defendant Mr. Ashby, the head of the company involved in selling aerial photographs was ready to settle the matter outside the court of law but since he never received any communication from the plaintiff he could not take ant step towards settling the case outside the court of law (Smith & Denis, 2004). Legal issues raised by the facts above The first legal issue raised by the facts above is whether the defendant infringed on the private life of the plaintiff by taking the aerial photograph of his property (house) without his permission (Elliott & Francis, 2007). The second legal issue is whether this amounted to a tort or not because trespass is one of the torts and it is a civil wrong committed by persons. The third legal issue raised by the facts above is whether the defendant indeed trespassed on the plaintiff’s land by flying over his land. The fourth legal issue is whether there is limit to the exclusive rights of an individual over land which means that a person cannot claim exclusive rights beyond a given point on the surface of his land. The fifth legal principle raised by the facts above is whether the old maxim that “he who possesses land also possesses that which is above it and below it” holds in the above case (Porojek, 1975). The sixth legal issue raised by the facts above is whether the defendant indeed committed a tort of trespass by flying over the land of the plaintiff and taking aerial photographs of his house without the plaintiff’s permission. How the court resolved the case above In resolving the above case the court established that even though the law defines land as including the surface over the earth and thus giving the owner of the land the rights over the surface of his land, the rights of the plaintiff were not infringed by the defendant because taking an aerial photograph did not amount to any form of harassment to the plaintiff because the defendant was not in the habit of constantly surveilling the plaintiff’s house. The court held that a land owner cannot claim to posses unqualified rights in relation to the surface above his land. In delivering his ruling his judge Griffith stated “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height” (Trinidade, 1982, p. 35). This was interpreted to mean that the landowner’s rights over his land extends also to the surface above his land but these rights only apply to the height required by the owner for the enjoyment and use of his land and not for the rest of the surface which is not required by the owner for the enjoyment and use of his land. In this perspective, the surface above the plaintiff’s land from where the aerial photograph was taken was out of the surface required by the plaintiff for the enjoyment and use of his land. The judge held that the landowner’s rights are well embedded in law and that the same law recognizes that the landowner has a right over the surface above the land owned by a person. Citing the case in Gifford v. Dent (1926) W.N. 336 the judge held that indeed erecting an object 4 to 8 feet in projection over the surface of another person’s land amounted to trespass (John, 1990-91, p. 283). The other case which the judge cited in delivering his ruling was the McNair. J. in Kelsen v. Imperial Tobacco Company Ltd. (1957) 2 Q.B. 334 (Ledgerwood, 2009, p.66). In this case he defendants (Imperial Tobacco Company) had erected a sign above the surface of the plaintiff’s land. However, the projection of the sign was only 8 inches above the surface of the plaintiff’ land. The defendants were ordered to remove the sign because it amounted to trespass over the land of another person (plaintiff) (Anderson, 2010, p. 49). The Judge observed that in the above preceding cases the erection of the signs and objects above the surface of the plaintiff’s land amounted to trespass because the objects would be a nuisance in the plaintiff’s enjoyment and use of the surface of his land. The judge also observed that the height of the objects erected would likely interfere with ordinary use of the land. However, Judge Griffith held a different view regarding the case between Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479 (Glenda and Helen, 2009, p. 63-76). In the later case the judge ruled that the passage of an object such as a balloon or aircraft above the land at a height that would not likely interfere with the land use did not amount to trespass. The judge also cited the case in Pickering v. Rudd (1815) (Kimudy, 2001) where the court held that when a person used a balloon to pass over the land owned by another person this would not amount to trespass. Relying on the facts raised in the example cases above, the judge concluded that the aircraft belonging to the defendant flew hundreds of feet above the ground and the space over which the aircraft flew was not of any use to the plaintiff or was not likely to be ordinarily be put to use by the plaintiff (Mark & Ken, 2003). On the issue of taking the photograph without the permission of the plaintiff, the court ruled that at that time there was not legal requirement that prohibited photograph taking and thus taking photograph without permission would not amount to trespass (Gate, 2004). In addition, the motive of taking the photograph from the air was also determined as being business oriented since the photograph was later delivered to the plaintiff who turned down the defendant’s offer to buy the photograph. Finally, the judge ruled in the favour of the defendant by holding that the defendant had not committed any acts of trespass (Felix, 1988). Legal rule arising from the decision Looking at the preceding cases discussed above, it is evident that all other cases involved erection of structures such as buildings, signs and objects above the land owned by another person. This case however, was unique in itself and the legal rule arising from the decision held by the court was that even though authority recognizes the rights of the landowner regarding the surface above his land, these rights are limited and do not extend beyond the height above the land that the landowner cannot ordinarily enjoy or use. Rationale or underlying social policy of the decision The fact that the judge ruled in favour of the defendant reflects the need for the people in the society to resolve their disputes out of the court before incurring expenses and losing time in the courts. This is because even though the defendant was ready to resolve the dispute outside the court had it not been for the communication breakdown between the defendant and the plaintiff, the plaintiff went ahead to take the matter before the court only to lose in the case. Issues left unresolved by the decision The first issue left unresolved by the decision was whether it would be prudent for the defendant to seek for permission in future when taking photographs on other peoples properties or the law was silent on the matter. The second issue left unresolved was whether the ruling by the defendant would make any claims of damages and losses suffered in the cause of the case. How this decision might be used in later cases As stated before, this case set the precedence of any other cases that would be brought before the court of law regarding trespass on the surface above the land. This is because all other cases involved erection of structures above another person’s land. However, this case involved flying objects such s balloons or aircrafts above another person’s land beyond the height at which the landowner would ordinarily use the surface above his land. Sources Anderson, L. (2010). "Subsurface "Trespass": A Man's Subsurface is Not His Castle". Washburn L.J. 49. Elliott, C., & Francis, Q. (2007). Tort Law. (New York, Pearson Longman). Felix, H. (1988). Analysis of Tort Cases. (New York: Sage Publishers) Gate, J. (2004). Introductory Elements of Law. (Oxford, Oxford University) Glenda, M., & Helen, M. (2009). How to study business law: reading, writing and exams (LexisNexis Butterworths, pp.63-76. John, H. (1990-91). Meet MIRAT: Legal reasoning fragmented into learnable chunks’ (2) Legal Education Review 283. Kimudy, D. (2001). Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479. Oxford, J. Legal Stud. 4(15). Ledgerwood, G. (2009). "Virtually Liable". Wash. & Lee L. Rev. 66. Lejee, K. (2003). Legal issues in the law of trespass. (New York, Sage Publishers). Mark, L., Ken O. (2003). Tort Law - Texts, Cases. (Oxford, Oxford University Press). McNair. J. in Kelsen v. Imperial Tobacco Company Ltd. (1957) 2 Q.B. 334. Porojek, T. (1975). Understanding the Tort Law. (Oxford, Oxford University Publishers) Saleem, N. (2005). The Tort Law. New York: Sage Publishers. Smith, K. & Denis J. (2004). English Law (14th ed ed.). Pearson Education Ltd. Trinidade, F. (1982). "Intentional Torts: Some Thoughts Assault and Battery". Oxford J. Legal Stud. 2 (35). Read More