Dave is a pleasure boat enthusiast. He owns two pieces of land on opposite banks of a non-tidal stretch of the River Hamble. The two pieces of land face each other across the river. One piece is on the east side of the river, the other is on the west.
Dave lives on the east side of the river where he has moored a Victorian yacht (a yacht is a type of boat). Dave inherited the yacht from his father who used to operate it along the river. However, it is now fixed to the jetty and has provided Dave with his permanent home for over twenty years. Indeed, without the support of the jetty the yacht would fall apart.
Dave uses the land he owns on the eastern side of the river to indulge his passion for rare flowers. His garden contains many varieties of flowers including orchids found nowhere else in England.
On the western side of the river Dave has his boat building workshop. His prize possession is a large industrial saw and wood-shaping machine which was specially installed by being bolted on to a reinforced concrete floor in 2013.
Dave has fallen on hard times and recently decided to sell both sections of river bank. Hans has bought both sections of river bank and Dave has used the proceeds to buy a house just inland from the eastern river bank. Hans was particularly taken with the machinery in the workshop, the flower garden and the Victorian yacht. When Hans moved in he discovered that before leaving Dave has removed the Victorian yacht and the machinery from the workshop. Dave has also dug up the whole garden and replanted the flowers in his new garden.
To make matters worse the 15 metre high crane that Dave installed at his new home to move the yacht is still overhanging Hans’s garden. The arm of the crane is encroaching on Hans’s land by only about a metre at approximately 15 metres above the ground. It is not actually getting in the way of what Hans wants to do on the land but it is making him cross just knowing it is over his land. Hans wants to get these matters sorted quickly as he wants to get on with his plan to dig a tunnel under the river to join up the two pieces of land.
Advise Hans. In particular, you should address the following points:
Was Dave entitled to remove the machinery, the flowers and the yacht?
Will Hans be able stop the encroachment by the crane?
Will Hans be permitted to build his planned tunnel?
The first broad issue is categorising whether the Machinery, Yacht and Flowers are fixtures or chattels. The courts have developed a test in the case of Holland v Hodgson which has two stages:
- The degree of annexation – This essentially looks at whether the object is attached to the land, and to what extent it has been attached.
- The Purpose for Annexation – This basically looks at what the intentions of annexing the object to the land were. With canal boats it is that they are easily removed (Chelsea Yacht v Pope)
In this situation the machinery has been annexed to the land quite substantially as it has been nailed to the floor. The facts of this situation almost mirror those of Holland v Hodgson, but I do not believe that the machinery in this situation is a fixture. The purpose for the annexation wasn’t to add a permanent improvement to the land. Fixing the machinery to the land had the effect of getting better enjoyment from his hobby.
The flowers actually form part of the land, they come under The Law of Property Act 1925 S205(1)(xi) as corporeal hereditaments. This means that Dave was not entitled to remove the flowers from the land, he should have left them behind.
The yacht will be a chattel. This is because the purpose for the yacht being annexed to the land was that it could easily be removed without being destroyed as in the case of Mew v Tristmire. This case is particularly significant to Dave because in this case it did not matter that the houseboats were fragile, it only mattered that the purpose they were annexed was not to add an overall benefit to the land. Despite the yacht being annexed to the land, the purpose of the annexation was far more important as Elitestone v Morris suggests. Moored boats are unlikely to become fixtures as illustrated by Chelsea Yacht v Pope.
The next legal issue is whether Hans can prevent the encroachment of the Crane. In Bernstein v Skyviews the court held that ownership of airspace extends to such a height a necessary for the ordinary use and enjoyment of his land. Above that right the landowner has no more additional rights than a member of the public. From this case it may seem like Hans cannot enjoy the land at this height, which will mean there is no trespass.
However, the case of Woolerton and Wilson v Richard Constain outlines the extent of the lower airspace, which amounted to 15 meters above the premises. In this scenario the crane is 15 meters above Hans’ land, which means that there may be a trespass because Bernstein was arguably an Aviation policy decision. In Laiquat v Majid an injunction was granted despite the interference not affecting the ordinary use and enjoyment of land. The crane will be trespassing onto Hans’ airspace, which he owns. This amounts to a trespass.
The next legal issue is whether Hans can build his tunnel. Hans owns both sides of the river bank where a non tidal river runs through the land he owns. Under The Land Registration act 2002 S132(1) land also includes land covered in water. Hans owns both banks which means Ad Medium Filum will apply, this is where the land owner owns up to the centre line of a non tidal river. This means that Hans owns the land beneath the water, and there is no reason he cannot build his tunnel.
Hans will be able to build his tunnel and seek action to have the crane removed from trespassing onto his land. Dave should not have removed the flowers, but was fully entitled to remove the yacht and machinery because they are chattels and not fixtures.