Di Napoli v New Beach Apartments Pty Ltd
[2004] NSWSC 52
(New South Wales Supreme Court)
(relevant to Chapter 3, under heading ‘Scope of the Tort’ on p 39)
Trespass to land may be committed beneath the surface.
[The plaintiff and the defendant were adjoining occupiers of land. In the course of
constructing a building on its land, the defendant placed rock anchors which
projected beneath the plaintiff’s land and were visible in the excavation on the
defendant’s land. Young CJ in Eq, in an interlocutory hearing of the plaintiff’s claim
in trespass, granted a mandatory order in favour of the plaintiff for the removal of
the rock anchors.]
YOUNG CJ in Eq. … 13. The plaintiff’s substantial case is that she is the registered
proprietor of the land, or alternatively has the best right to possession of the land and that
these rock anchors constitute a trespass.
14. The defendant in its defence, as filed, seems to say that the rock anchors are
below the usable subterranean space of the plaintiff’s land and that they are in a location
too distant or the depth too great to be available to the plaintiff for the ordinary use and
enjoyment of her land. That seemed to be the sole defence. …
17. So far as the … defence is concerned, it did not seem to me that it had any
validity. It is certainly the case that the old adage, that the person with title to the land
owns the land usque ad coelum et ad infernos [up to the sky and down to the depths], is
not to be taken literally. It is also true that, especially so far as the air space above land is
concerned, there have been pronouncements of courts which make it clear that flying an
aircraft over a person’s land is not necessarily of itself a trespass: see for instance
Bernstein v Skyviews and General Ltd [1978] QB 479.
18. However, a series of cases in Kentucky involving caves which have been
accepted by most of the sound academic writing on real property in this State make it
clear that, at least for subterranean rights, a person has substantial control over land
underneath his or her soil for a considerable depth. Cases such as Cox v Colossal Cavern
Co 276 SW 540 (1925); Edwards v Sims 24 SW (2d) 619 (1929) and Edwards v Lee 96
SW (2d) 1028 (1936) are in this category and deal with caves some 360 feet below the
surface. In Australia, the same flavour comes through in cases such as Graham v KD
Morris & Sons Pty Ltd [1974] Qd R 1 and Stoneman v Lyons [1974] VR 797, 802
(reversed on another point (1975) 133 CLR 550). …
28. In connection with cases of trespass to land, the authorities do seem to have
taken a consistent line. That is that where a person seeks to develop their land by
utilising neighbouring land for their convenience without consent … then the court will,
almost as a matter of course, grant an injunction to restrain it. This is because people are
entitled to the exclusive use of their land and it is no answer to say that that person is not
suffering financial loss by the defendant’s use and that it is extremely important to the
defendant to be able to make use of the plaintiff’s land for its purposes; see LJP
Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490, 496… .
30. It seems to me that I should grant an order in favour of the plaintiff. …
Order accordingly
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