The case of Kelsen v Imperial Tobacco Co [1957] 2 QB 334 is a significant decision in English land law that addresses the question of airspace rights and trespass.
| Case Name & Citation: Kelsen v Imperial Tobacco Co [1957] 2 QB 334 |
| Court: Queen’s Bench Division (High Court of Justice, England and Wales) |
| Areas of Law: Land law, Trespass to Land, Airspace Rights, Injunction, Property Law |
Key Facts – Kelsen v Imperial Tobacco
Mr. Joel Kelsen, the plaintiff, leased a single-storey tobacconist shop at 407 and 407b City Road, Islington, London.
The adjacent property at 409 City Road was owned by Imperial Tobacco Co. Ltd.
The company affixed an advertising sign to their building, which projected approximately 4 inches into the airspace above Kelsen’s shop.
Initially, Kelsen did not object to the sign, but he later demanded its removal.
Imperial Tobacco refused, arguing that the sign did not constitute a substantial interference with Kelsen’s enjoyment of the land.
Legal Issue
Whether the projection of the sign into the airspace above Kelsen’s leased premises constituted a trespass?
Judgment (Kelsen v Imperial Tobacco)
The court held that the projection of the sign into the airspace above Kelsen’s shop did constitute trespass.
The rights of a landowner extend to the airspace above their property, and any unauthorized intrusion into this space, however minimal, is a trespass.
As a result, the court granted a mandatory injunction ordering Imperial Tobacco to remove the sign.
Legal Reasoning and Principles
The case rested on the principle that property rights include the airspace above the land, reinforcing the maxim “cuius est solum, eius est usque ad coelum et ad inferos” (whoever owns the soil, owns up to the heavens and down to the depths).
Even a small intrusion into the airspace above someone’s property can be considered trespass.
This decision set a precedent, indicating that any unauthorized overhanging structures or objects, regardless of size, could lead to legal action for trespass.
List of references:
- https://s3.studentvip.com.au/notes/1253-sample.pdf
- https://www.oup.com.au/__data/assets/pdf_file/0024/140892/MOORE_9780195579031_SC.pdf
- https://bpb-ap-se2.wpmucdn.com/blogs.auckland.ac.nz/dist/6/779/files/2023/06/The-Extent-of-a-Landowners-Rights-in-Land-Law-%E2%80%94-Law.pdf
- https://wohanley.com/law/outlines/Property/Land/Ad_Coelum_et_ad_Inferos/Kelsen_v._Imperial_Tobacco.html
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Ruchi is a legal research writer with an academic background in CA, MBA (Finance), and M.Com. She specializes in digesting and summarizing complex judicial decisions into clear and structured case notes for students and legal professionals.