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Archive for November, 2010

On, over and under land

Trespass to land is the unlawful interference with or entry upon land in the possession of another.  Further, the rights of an owner of land extend not just to the land surface but also to such height above the surface as is necessary for the ordinary use and enjoyment of the land and the structures on it.  Above that height, the owner has no greater rights than any other member of the public (see, for instance, Didow v Alberta Power Ltd [1988] 5 WWR 606).  An advertising sign overhanging the claimant’s land enabled him to found a case in trespass in Kelsen v Imperial Tobacco Co [1957]  2 QB 334 and a building or crane overhanging neighbouring property can also amount to a trespass (see for instance London & Manchester Assurance Co Ltd v O&H Construction Ltd [1989] 29 EG 65).

What about rights below the surface?  In the case of Star Energy Weald Basin Limited and another v Bocardo SA [2010] UKSC 35 Lord Hope confirmed “that the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else”.  Pursuant to statute, petroleum lying underground belongs to the Crown.  In this case, the Secretary of State for Energy had granted Star Energy exclusive right to search and bore for and obtain petroleum lying below Bocardo’s land in Surrey.  Was the drilling of the necessary wells below Bocardo’s land an actionable trespass?  The Supreme Court held that it was leaving to be answered the question as to measure of damages.

First, the Court held the principles governing valuation in the field of compulsory land purchase apply.  Nevertheless, Bocardo asserted it benefited from the key value of the ancillary right which Star needed to acquire.  The Supreme Court did not agree and preferred the Court of Appeal’s award of £1,000 damages to the £621,180 plus interest awarded by the first instance judge.

If you wish to hear more about trespass, why not contact Hatherleigh Training?