Court case[1957] 2 QB 334

The plaintiff was the lessee of a one-storey tobacconist's shop. The defendants, a tobacco company, erected a large advertising sign on the wall of the adjoining building, which was higher than the plaintiff's shop. The sign projected about eight inches over the plaintiff's roof, into the airspace above his shop. The plaintiff demanded its removal and, when it was not removed, sued for a mandatory injunction, alleging that the projection was a trespass. The defendants argued that the airspace was not included in the plaintiff's lease, and that in any case an intrusion into airspace could at most be a nuisance, requiring proof of damage.

McNair J. held that the lease included the airspace above the shop, and that the invasion of that airspace by the defendants' sign was a trespass, not merely a nuisance. Since trespass is actionable per se, the plaintiff did not have to prove damage. He was entitled to a mandatory injunction requiring the defendants to remove the sign. The judge accepted that an owner's rights extend to the airspace above his land, and treated older authority suggesting that intrusions into airspace without contact with the soil were only nuisances as not representing the law.