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Bernstein v Skyviews and General Ltd [1978] QB 479

Trespass – No right of privacy in airspace

Facts

Skyviews and General Ltd (S) took an aerial photograph a number of houses, including Coppings Farm, Bernstein’s (B) country home. S then purported to sell the photograph to B. B claimed damages for trespass onto his airspace and, or alternatively, invasion of privacy for entering the air space above his property and taking the photograph without his consent.

Issue

The issue in question was whether a person has the right to privacy in airspace.

Held
There was no trespass. An owner of land has rights in the air space above his land only to such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. B had no right to privacy in airspace and accordingly there had been no infringement of B's rights in the airspace above his property. It would be absurd to take the latin maxim cujus est solum, ejus est usque ad coelum et ad inferos (whoever owns the soil it is theirs up to heaven and down to hell) literally as it would mean that any time a satellite passed overhead it would be trespassing. A property owner’s rights in this case must therefore restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and to declare that above that height he had no greater rights in the airspace than any other member of the public.


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