Property Law

Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334

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Facts
  • The Plaintiff owns a tobacco store, and the Defendant is his neighbour
  • The D erected a sign which overhung the roof of the P’s store by some distance
  • P alleges trespass
Issue

Does the nature of the property right to the airspace above the shop’s land allow an action in trespass?

Held
  • Prima facie, the lease of land includes the airspace
  • Just because the airspace is not needed, doesn’t mean it doesn’t belong to the leaser
  • It can be trespass to use airspace of another (that is why Civil Aviation Acts expressly grant permission)

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