Power company had poles with protrusions that extended over Didow’s land. Didow sued for trespass.
An intrusion that interferes with potential or actual use and enjoyment of the land constitutes trespass. There must also not be overriding policy considerations.
The court noted that the poles were permanent structures. Based on the Bernstein Test, there must be an infringement on the actual or potential uses of the land. In this case, there was.
The court then found that there were no overriding policy considerations.
Decision in favour of Didow; later overturned by legislation.
The defendants argued that airspace is common property (per the Air Canada case). They also argued, per Lacroix, that a landowner does not own airspace -- nobody owns it. This argument was not successful.