England and Wales High Court (King's Bench Division) Decisions

IN THE KING'S BENCH COURT

		Tuesday 20 June 1815

1. Trespass for breaking and entering the plaintiff's close, and placing a board over it, and cutting a tree, etc.
2. Plea, not guilty as to the clausum fregit; and as to cutting the tree, a justification that it was wrongfully growing against the wall of the defendant, and that he therefore removed it, as he lawfully might. New assignment of excess, and issue thereupon.'
3. The defendant's house adjoins to the plaintiff's garden, the locus in quo; and to prove the breaking and entering of this, the evidence was, that the defendant had nailed upon his house a board, which projected several inches from the wall, and so far overhung the garden.
4. Garrow, A. G., and Richardson for the plaintiff contended, that this was a trespass for which he had a right to maintain the present action. Cujus est solum, ejus est usque ad coelum. The space over the soil of the garden is the plaintiff's, like the minerals below, and an invasion of either is, in contemplation of law, a breaking of his close. A mere temporary projection of a body through the air across the garden may not be actionable; but where a board is caused permanently to overhang the garden, this is a clear invasion of the plaintiff's possession. If this be not a trespass, it is easy to conceive that the whole garden may be overshadowed and excluded from the sun and air without a trespass being committed.
5. Lord Ellenborough: I do not think it is a trespass to interfere with the column of air superincumbent on the close. I once had occasion to rule upon the circuit, that a man who, from the outside of a field, discharged a gun into it, so as that the shot must have struck the soil, was guilty of breaking and entering it. A very learned Judge, who went the circuit with me, at first doubted the decision, but I believe he afterwards approved of it, and that it met with the general concurrence of those to whom it was mentioned. But I am by no means prepared to say, that firing across a field in vacuo, no part of the contents touching it, amounts to a clausum fregit. Nay, if this board overhanging the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clausum fregit, at the suit of the occupier of every field over which his balloon passes in the course of his voyage. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is invaded. If any damage arises from the object which overhangs the close, the remedy is by an action on the case. Here the verdict depends upon the new assignment of excess in cutting down the tree. The jury found for the defendant.

Garrow, A. G., and Richardson for the plaintiff.

Jervis and Abbott for the defendant.