EWCA Civ 762
Where cattle belonging to a neighbour had eaten the Claimants trees they did not have to make do with £25,000 damages representing diminution in value of his property awarded by the trial judge. They were entitled to the reasonable cost of replacing the trees with young trees, which would cost £44,500, because that was what a reasonable person would do if laying out his own money.
There was also an increase in general damages for loss of amenity and in aggravated damages because there was a serious incursion into the claimants' right to the enjoyment of their home; that the defendants were well aware of the effect that their conduct was having in that respect; and that they intended (or, at the least, were indifferent to the fact) that it should have that effect.
Overhanging extractor fan
 EWHC 1305
The trial judge held that an overhanging extractor fan was not causing a trespass because it did not cause a substantial interference with the claimants land. On appeal this was held to be wrong.
- ".. if a defendant interferes with a claimants airspace, this amounts to trespass except that this conduct would not constitute trespass if the interference were at such great height - such as by high flying aircraft - that it does not interfere with the claimants airspace. As Scott J explained if somebody erects on his own land a structure, part of which invades the air space above the land of another, the invasion is trespass." (para 34).
(The argument in the citation is a bit circular: An interference is not an interference if it does not interfere because it is too high! But we know what the court means).
The real question for the trial judge to determine was whether or not an injunction should be granted or damages awarded in lieu. The case was referred back to the judge to carry out that exercise.
Strata beneath the surface
Technical trespass – assessment of damages
 EWCA Civ 579
Ownership of property gives ownership of the strata beneath the surface of the land (in the absence of any express or implied alienation), and therefore prima facie possession of them. Installing pipelines is therefore a trespass; but, if it does not interfere with the owner’s enjoyment of his land, damages will be low.
By the Petroleum (Production) Act 1934 (“the 1934 Act”), all petrol in strata in Great Britain belongs to the Crown. The Crown is able to grant licences to bore for and get petroleum. The Crown granted such a licence to the Appellants relating to the Palmers Wood Oilfield. The Appellants installed pipelines running at an angle so that they passed into the strata under the Respondent’s land. The trial judge found that there had been a trespass and awarded damages of £621,180 plus an injunction unless 9% of gross future revenues were paid to the Respondent. The Appellant appealed against the finding of trespass and the damages and other remedies awarded.
The findings of trespass were upheld but the order made by the judge was discharged and replaced with a substantially reduced award of damages.
First, the Court of Appeal dealt with the question of how far beneath the surface ownership extends. It indicated that it was not helpful to draw a parallel with regard to the airspace above land (because there are many potential users of airspace), so the limit was not to be set by reference to the depth that was reasonable in order to facilitate enjoyment of the surface. The owner of the surface owns “strata beneath the surface of his land, including minerals, unless there has been some express or implied alienation of the whole or a particular part of the strata to another”. The Respondent therefore owned the land through which the pipelines were laid (but not the petrol lying in the strata, because of the 1934 Act).
Next, the Court of Appeal considered whether the Respondent was in possession of the strata (for a claim in trespass only lies for disturbance of possession). The Court stated that the test for possession in this context was the same as in adverse possession: factual/ physical possession and an intention to possess are required – but held that since the Respondent “has the prima facie right to possession of those strata, so it is deemed to be in factual possession of them”. The Court of Appeal did not explain how the Respondent had demonstrated an intention to possess, and simply concluded that, since the Appellants had no right to install pipelines, they had committed a trespass. In particular, the Court of Appeal rejected an argument that a right to extract minerals carried with it, at common law, an entitlement to cross lands of another, on the basis that the cases where a right to get access in order to extract minerals was upheld were in truth applications of the principle of non-derogation from grant which could not entitle a party to access lands of a third party. Equally, the Court of Appeal rejected an argument that a licence granted under the 1934 Act conveyed the right to cross lands of a third party.
In deciding what damages should be awarded a key factor was the amount of compensation that would be awarded under the s 8(2) of the Mines (Working Facilities and Support) Act 1966 (“the 1966 Act”) for the grant of an “ancillary right”; the ability to obtain a right under this statute would be an important issue in any negotiation between the parties for the grant of a right to run a pipeline under the land.
The Court of Appeal approved BPV Ryder  2 EGLR 233, which suggested that compulsory purchase principles and cases should be examined when assessing the compensation payable under that Act. However, they disproved the suggestion that the Appellant’s special interest should be assessed on the basis that they would have made “one more bid” in an imaginary auction. Rather the test was: “given that the grantee is in a special position, what (if anything) would that add to the value of the right to be granted, bearing in mind the requirement that overall the assessment must be fair and reasonable between a willing grantor and a willing grantee?” and commented that it was a question of fact in each case.
The Court of Appeal ‘s conclusion was that £82.50 was the amount of compensation that would have been fixed under the 1966 Act – and that, bearing this in mind, the proper award of damages was £1000, since the Appellants would be prepared to pay a sum of that nature to avoid delay and costs in making a claim.