Applying the principles of Trespass Law, is there or could there be an actionable trespass in the Jolly v James case and what would the likely remedy be?
A full understanding of the meaning of trespass needs to be established, before determining whether there is an actionable trespass in the case of Jolly v James (“the Case”). In this essay, there will be an exploration into the different types of trespass, including trespass to the surface and subsurface of land as well as trespass to the airspace. In addition there will be details concerning the Party Wall Act 1996, building up to the boundary, astride the boundary and the 3 meter ruling. Lastly, there will be a brief glance at the relevant boundary and light disputes between the parties. In particular, case law will be used to address these topics. In its basic form, a trespass may happen when one strays onto another’s land or airspace either intentionally or by mistake and as usual with law, ignorance is no defence. The degree of compensation awarded will vary depending on the triviality or severity of the damage caused by the act of trespass. More generally speaking, air space and subsurface types of trespass take more application than the mistaken wandering onto another person’s property, which is then reflected in the compensation. Should there be no damage at all, such as a mistaken entry into a farmer field, then the compensation will be negligible. The act of trespass is considered more serious in relation to damage caused and should it be of permanent nature, i.e. a building that permanently encroaches a boundary, it is regarded as extremely serious. In these cases a financial compensation is deemed inadequate and the courts can order the offending building to be pulled down. This was the case with Harrow London Borough Council v Donohue and another  1 EGLR 257.
A freehold property includes the airspace up to the level of what would be constituted reasonable use for the enjoyment of that persons land. This was demonstrated in the case of Laiqat v Majid and others  EWHC 1305, whereby M installed an extractor fan over hanging the freehold owned property of L. The court declared this was a trespass. Although the offending machinery was not placed on the land, it overhung into the space above L’s property, and this was deemed to be a trespass. This can be further demonstrated in the case of Kelsen v Imperial Tobacco Co (of Gt Britain and Ireland) Ltd  2 QB 334. This case involved an advertising signage that overhung K’s land, which he deemed as being a trespass. IT argued that it wasn’t a trespass, although they conceded that the Tort of Nuisance could perhaps be relevant. McNair J disagreed and held that the sign was indeed a trespass to the airspace, citing the case of Pickering v Rudd (1815) 4 camp 219 . When considering whether a person has committed a trespass to airspace the courts will put particular emphasis on whether the deemed trespass was reasonable, in particular taking into account the balance between society and science. This was reflected in the case of Bernstein v Skyviews  1 EGLR 96, where Griffith’s J declared that Skyviews had not committed a trespass by flying over Bernstein’s freehold property and that is was “reasonable” behavior by Skyviews. Griffiths J held at page 488 the following:
“The problem is to balance the right of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offer in the use of air-space. The balance in my judgment is best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is ordinarily necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the airspace than any other member of the public.”
To overhang ones garden could be considered to be...
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