Within this essay I intend to discuss the meaning of the Latin maxim, \u201ccuius est solum eius est usque ad coelum et usque ad infernos\u201d and evaluate to what extent I believe that is it an accurate reflection of the law. With reference to case law and legislation, I will discuss the complications that arise when determining both the upward limit and the downward limit described in the maxim.<\/p>\n
The key statue when determining the definition of land is the Law of Property Act 1925<\/a> in which section 205(ix) states that \u2018land\u2019 does not only include the actual land but the buildings that may be upon it, fixtures to the land, minerals, mines and the airspace surrounding it.[1]<\/a> The degree of ownership to this land was encompassed in the thirteenth century Latin maxim; \u201ccuius est solum eius est usque ad coelum et usque ad infernos.\u201d The translation of this maxim was made in the case of Corbett v Hill [1870] to express that the surface owner\u2019s rights would extend up to the heavens and downward to the centre of the earth. This historical statement is often used when the definition of land is being considered but is viewed as being a broad generalisation with little significance in today\u2019s modern society.[2]<\/a> Lord Wilberforce remarked on it as being \u2018so sweeping, unscientific and unpractical that it is unlikely to appeal to the common law mind.\u2019[3]<\/a><\/p>\n This Latin maxim was It is obvious that, whenever an individual purchases an estate in land, he or she will have the exclusive right to use the surface of the land whether it be to walk on, live on, graze animals upon, etc. In terms of subsurface ownership, the general rule is that the landowner is entitled to possession of the subterranean area below the surface of his land. Although s.205(ix) of the Law of Property Act 1925 states that minerals and mines make up the land, cases including that of R v Earl of Northumberland and Mines [1568] state that certain minerals such as silver and gold belong to the Crown alone.[8]<\/a> By statutory right, as seen in Acts such as the Coal Industry Act 1994 and the Mineral Development Act (N.I.) 1969, the Crown has the entitlement to any fossil fuels therefore it is only under Crown authority that they can be extracted. The Crown is also entitled to any treasure found within the land. This is stated in the Treasure Act 1996 which has since been extended to form the Treasure Designation Order (2002). The courts must interpret these statues to determine what contents of the land can be possessed by the landowner and also how far below the surface of the land their property rights reach. In the case of Bocardo SA v. Star Energy UK Onshore Ltd [2011] it was found that drilling to extract oil at depths of 3,000 feet amounted to trespass with the argument that the claimant did not have ownership of the land being rejected.[9]<\/a> However this decision has since been restricted by s.43 of the Infrastructure Act 2015 to facilitate activates such as \u2018fracking.\u2019 Section 43 permits the exploitation of land below depths of 300m beneath the surface without liability to trespass. In the writing of \u2018Owning the Center of the Earth\u2019, John G. Spankling implied that ownership should only extend to depths of 1,000 feet.[10]<\/a> A definite measurement to the depth that a landowner can claim rights to has never been exclusively set therefore case law precedent and legislation require extensive scrutiny in attempt to define to what extent a landowner\u2019s rights extend both downwards into the subterranean and upwards into the airspace.<\/p>\n When case law is studied to determine the landowner\u2019s rights to the airspace above him, no clear answer is found, only that the landowner is entitled to what is \u201cnecessary for the ordinary use and enjoyment of his land and the structures on it.\u201d[11]<\/a> In the case of Wandsworth Board of Works v United Telephone Company (1884), it was stated (obiter) that a landowner may bring an action in trespass in relation to anything that passes over or is placed in the airspace above his property.[12]<\/a> This judgement was criticised and could be seen as opening the floodgates to claims in trespass. Griffiths J. stated, in the case of Bernstein v Skyviews and General Ltd [1978], that giving the landowner unlimited rights to the airspace above would lead \u201c..to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden.\u201d[13]<\/a> After this judgement, the landowner\u2019s rights were restricted to a \u2018reasonable\u2019 height but the basic principle still remained. This then allowed a balance to be created between the rights of the landowner and the rights of the public to air travel. The Civil Aviation Acts 1949 and 1982 (s.76) were developed to exempt air travel at a reasonable height from liability to trespass and the introduction of the Regulatory and Investigatory Powers Act (2000) has created protection of individuals against intrusion such as that seen in the Bernstein case. The development of such legislation is unmistakable evidence of the effect that human rights are having on property law.[14]<\/a> <\/p>\n The downward limit to the rights of the landowner is also not clearly stated within case law. The equivalent factors apply to the subsoil as to the airspace. Morgan J. echoed this when concluding in the case of H Waites Ltd v Hambelton Court Ltd and others. He stated; \u201c..where the wording of the demise is expressed by reference to a vertical division, and there is no wording expressing any horizontal division, it is natural to react to that wording by holding that there is no horizontal cut off which excludes the airspace above the building or, for that matter, the sub-soil below the building.\u201d[15]<\/a> In the case of Grigsby v Melville [1973] an action in trespass was taken against the owner of a shop, adjacent to a cottage, for continuing to use the cellar beneath the cottage. The cottage had once belonged to the landowner of the shop but had since been sold. Brightman J. stated that \u201ca purchaser does not expect to find the vendor living mole-like beneath his drawing room floor.\u201d[16]<\/a> This case highlighted that a landowner only possesses rights to the subterranean directly belong his property. In the case of Bocardo SA v. Star Energy UK Onshore Ltd [2010] it was said that the landowner can bring an action in trespass if pipes etc., even at great depths, become intrusive to their property. However, nominal damages were only available to the claimant as they were given no right to damages that would relate to the value of the resource under question.[17]<\/a> This case was seen to allow the entitlement to injunctions which could, in turn, hinder production until the company obtained rights form the government to continue an also confirmed the decision set out in the case of Elwes v Brigg Gas Company [1886][18], the key authority relating to items found buried within the land. In was in this case that a prehistoric boat was discovered 6 feet below the surface. It was held by the courts that the tenant (Briggs Gas Co.) who discovered the boat could not gain entitlement to it because Elwes had lawful possession of the land when the lease was granted and was therefore was solely entitled to everything \u2018down to the centre of the earth.\u2019 The boat itself had also not been itemised in the terms of the lease meaning that its ownership had not be transferred to the tenant.[19]<\/a><\/p>\n The difficulty in Case law relating to In conclusion, maxims are Legislation:<\/strong><\/p>\n Cases:<\/strong><\/p>\n [1]<\/a> [2]<\/a> LawTeacher, [3]<\/a> Commissioner for Railways v. Valuer-General [1974] A.C 380 [4]<\/a> Yehuda Abramovitch, \u2018The Maxim “<\/a> cuius est solum eius est usque ad coelum et [5]<\/a> Sir [6]<\/a> Mark P. Thompson and Martin George, Modern Land Law <\/em>( 6th<\/sup> edn, Oxford<\/a>) 11<\/p>\n [7]<\/a> Leigh (Baron) v Skyviews and General Ltd [8]<\/a> R [9]<\/a> Bocardo [10]<\/a> John G. Sprankling, \u2018Owning The Center of the Earth\u2019 < [11]<\/a> Bernstein [12]<\/a> Wandsworth [13]<\/a> Bernstein [14]<\/a> Catherine [15]<\/a> H [16]<\/a> Grigsby [17]<\/a> Bocardo [18]<\/a> Elwes v Brigg Gas Company (1886) 33 Ch.D. 562<\/a><\/p>\n [19]<\/a> Catherine [20]<\/a> Martyr [21]<\/a> Kelsen [22]<\/a> Graystone [23]<\/a> Cockburn [24]<\/a> H [25]<\/a> Moller, [26]<\/a>Swetland [27]<\/a> Sir <\/a>Arnold Duncan McNair, The Law of the Air<\/em>, (2nd<\/sup> edn, [28]<\/a>Yehuda [29]<\/a> Yehuda Abramovitch, \u2018The Maxim ” cuius est solum eius
\ndevised long before mankind anticipated the production of aircrafts and has
\nbeen misapplied due to being pitifully misunderstood when relating to the
\nupward limit. It has led to confusion between space, which is not capable of
\nbeing reduced to ownership, and with air, which is.[4]<\/a> It cannot be indubitably
\naffirmed that the law is devoted to the perspective that the concept of space
\ncan be subject of ownership inconclusive of its contents leading to the
\nsuggestion that the meaning of the maxim should be viewed as “whosoever
\nowns a portion of the surface of the earth, also owns anything below and
\nanything above that portion, that may be capable of being reduced into private
\nownership”.[5]<\/a>
\nHowever, while it is convenient to describe ownership as having maximum rights
\nto the particular thing in question, it is wrong to state that the individual
\nis therefore entitled to do anything he or she desires with it.[6]<\/a> The initial view was that
\nthe landowner should acquire no rights to the air above him whatsoever based on
\nthe concept that the air should be free for all to use therefore cannot be subject
\nto ownership. This view was then changed to state that the landowner could
\nactively own the air above him, but uncertainty remained as to the extent of
\nrights he would have to it. Some argued that his rights should be limited to allow
\nonly those needed for enjoyment of his property however others would argue that
\nthe landowner should have full proprietary rights of the airspace above his
\nproperty. In the case of Leigh
\n(Baron) v Skyviews and General Ltd (1978) Q.B. 479 the court described the expression
\nof ad coelum<\/em> as \u2018colourful\u2019 but
\ncontinued to say that the owner of the land has rights to the air that is
\nimmediately above the land in question therefore the right to the higher
\nstratum of airspace above the property was not that of the landowner\u2019s, it will
\nonly extend to what is ‘necessary for the ordinary use and enjoyment of the
\nland and structures upon it’.[7]<\/a> <\/p>\n
\ndetermining who possesses the right over airspace and subterranean soils
\nheightens when the building, located in the area under question is inhabited by
\ntenants. The courts have witnessed many \u2018who owns what\u2019 cases in relation to flats,
\ntenancies and flying Freeholds. Under the concept of ownership, landowners bear
\nthe right to sell or lease the corridor of airspace above his land without
\ndiscarding his ownership over the surface beneath it. If the landowner decides
\nto build another two storeys onto is property and lease them as separate flats
\nthen it is impossible to apply the latin maxim, cuius est soleum eius est usque
\nad coelem et ad inferos on the grounds of the strict limit the conveyance has
\non the dimension of \u2018land.\u2019 The right that a tenant occupying the top flat has
\nto the airspace above and the right of the tenant occupying the ground flat to
\nthe subsurface below will depend entirely on the wording contained in the lease
\nbetween themselves and the rightful landowner. If the wording is deemed
\nunclear, it is presumed that the rights to the airspace or subsoil have been
\ntransferred to the tenant.[20]<\/a> However, if the roof has been excluded in the
\ncontract completely, it is automatically concluded that the tenant will possess
\nno right to the airspace above for the duration of the lease but if it has been
\nexclusively included then the landowner\u2019s rights to the airspace will be
\ntransferred to the tenant therefore judges must analyse the wording of cases
\nthoroughly. If they are unable to establish if the roof has been included or
\nexcluded, any restrictions placed on the tenant must be considered. For
\nexample, a restriction on placing items on the roof of the flat would indicate
\nthat the tenant has been granted entitlement to the airspace but under
\nlimitations.[21]<\/a> If the tenant decides to purchase a \u2018flying
\nfreehold\u2019, issues arise that are often disputable. They will become dependent
\non the owners of the flats both beneath and above them. In an attempt to deal
\nwith these issues, a new approach to the law in this area has been developed,
\nnamed the \u2018commonhold.\u2019 However, it is likely that the landowner will still be
\nconsidered as the owner of the entire building and possess the right to evict a
\ntenant at any time. <\/p>\n
\nproperties containing many horizontal layers also do not give a definite answer
\nto how far a landowner or tenant\u2019s rights extend into the subsurface or
\nairspace. An important case in this area of law is the case of Graystone
\nProperty Investments Ltd v Margulies (1983), Within this case it was
\nestablished that, unless stated otherwise in the lease, the tenant has the
\nright to utilise the entire space between the floor of the flat he occupies and
\nthe underneath of the flat overhead.[22]<\/a> When this case is then
\napplied to the top flat, the common presumption taken by the courts excludes
\nthe airspace above from the tenant\u2019s rights unless the contract states otherwise.
\nIt was held in both the cases of Davies v Yadegar (1989) 22 HLR 232 and Haines
\nv Florensa (1989) 22 HLR 238 that, if a lease included the roof then the tenant
\nhad the absolute right to the airspace above. Cockburn v Smith (1924) 20
\nfollowed the precedent of consulting the wording of the lease in an attempt to
\ndetermine the tenant\u2019s rights. Within this case Bankes LJ stated that it was
\nnot acceptable to make a tenant liable to pay for a leaking roof if the lease
\ndescribed the flats as \u201ca suite of rooms\u201d ,saying that \u201c\u2026 The contention that
\nbecause the rooms include the walls therefore they include the roof also in one
\nwhich I cannot assent to.\u201d[23]<\/a> In the case of H Waites
\nLtd v Hambelton Court Ltd and others [2014], permission to build on top of
\nleased garages was not permitted as limitations to the airspace above were not
\nincluded in the lease therefore Morgan J. concluded that \u201c\u2026I consider that
\nwhere one is dealing with a demise of a building, where the wording of the
\ndemise is expressed by reference to a vertical division, and there is no
\nwording expressing any horizontal division, it is natural to react to that
\nwording by holding that there is no horizontal cut off which excludes the
\nairspace above the building or, for that matter, the sub-soil below the
\nbuilding. My final view is that, in this case, the demise of a garage includes
\nthe airspace above the garage.\u201d[24]<\/a><\/p>\n
\nnot law hence they should be approached with caution. “A maxim is a
\nsignpost which directs the traveller, but does not choose the destination”[25]<\/a> therefore reference to
\nthem is often criticised as they are not of the same effect as legal rulings.
\nIn the case of Swetland v. Curtiss Airports Corp., maxims were described, by
\nSir Fredrick Pollock, as being \u201cattempted general statements of law\u201d that
\nshould be viewed as \u201ca symbol or vehicle of the law\u201d only.[26]<\/a> They are often used as a
\nconvenient method of portraying law with Lord McNair going as far to say that
\nthey are \u201cused either to darken counsel, or to afford a short cut and an excuse
\nfor not thinking the matter out.”[27]<\/a> From the cases that I
\nhave discussed above, it can be said that the \u2018ad coelum\u2019 theory cannot be
\nregarded and never has been regarded as law in the field of aviation. The maxim
\n“has become nothing but a clog around the neck of the development of the
\nlaw”[28]<\/a>
\nas its application in aviation cases is often denied but it is still granted as
\na plea for those who believe that they have been seriously affected by aircraft
\nactivity above their property or by an airport being in the vicinity of their
\nhome.[29]<\/a> The law must be adapted
\nto coincide with the modern, ever changing society today however the courts
\nstill appear reluctant to arise the traditional maxim completely whether it be
\nto avoid taking radical actions or on the concept that the maxim has gained
\nmuch importance and acceptance over many years.[30]<\/a> In the case of Bocardo,
\nLord Hope maintained that it \u201cstill
\nhas value in English law as encapsulating, in simple language, a proposition of
\nlaw which has commanded general acceptance.”[31]<\/a> However,
\nI
\nbelieve that it is not acceptable to extensively use this maxim merely because
\nit is generally accepted. Its vague reflection of law is restricting the
\nprocess of creating a definite law within this area as the extent to which a
\nperson\u2019s rights to the airspace above their property and the subterranean below
\nit are still uncertain when case law is considered. Legislation and case law
\nhave, however, set out basic principles which can be followed in a case
\nrelating to the ownership of various aspects of a property successfully but
\nneed to be consulted carefully in order to establish the boundaries in which a
\nlandowner\u2019s rights are enclosed.<\/p>\nBibliography <\/h2>\n
Books:<\/h3>\n
\n
\nThe Law of Civil Aviation<\/em> (Sweet and
\nMaxwell 1936)<\/li>\n
\nA.D, The Law of the Air<\/em>, (2nd<\/sup>
\nedn, 1953)<\/li>\n
\nC, Quinn L and Murphy T, The Law of
\nProperty in Northern Ireland<\/em> (1st<\/sup> edn, Colourprint educational
\n2014) <\/li>\n
\nMP and George M, Modern Land Law <\/em>( 6th<\/sup>
\nedn, Oxford<\/li>\n<\/ul>\nOnline Journals:<\/h3>\n
\n
\nAbramovitch, \u2018The Maxim ” cuius est solum eius est usque ad coelum et
\nusque ad infernos ” As Applied In Aviation\u2019 < http:\/\/lawjournal.mcgill.ca\/userfiles\/other\/8509457-abramovitch.pdf<\/a>> accessed 19
\nNovember 2017<\/li>\n
\nG. Sprankling, \u2018Owning The Center of the Earth\u2019 <
\nhttps:\/\/www.uclalawreview.org\/pdf\/55-4-4.pdf> accessed 17 November 2017<\/li>\n<\/ul>\nWebsites:<\/h3>\n
\n
\nEssays\u2019 (November 2013)
\n<https:\/\/www.lawteacher.net\/free-law-essays\/land-law\/property-law-1-land-law-law-essays.php?cref=1.>
\naccessed 16 November 2017<\/li>\n<\/ul>\n\n
\nof Property Act 1925<\/li>\n
\nIndustry Act 1994 <\/li>\n
\n1969<\/li>\n
\nTreasure Act 1996 <\/li>\n
\nTreasure Designation Order (2002)<\/li>\n
\nAct 2015<\/li>\n
\nCivil Aviation Acts 1949 and 1982 <\/li>\n
\nand Investigatory Powers Act (2000)<\/li>\n<\/ul>\n\n
\nHambelton Court Ltd and others [2014] EWHC651<\/li>\n
\n[1973] 1 ALLER 385<\/li>\n
\nCompany (1886) 33 Ch.D. 562<\/li>\n
\n(1864) 2 De G.J. & Sm. 261<\/li>\n
\nTobacco Co. (of Great Britain and Ireland ) Ltd. [1957] 2 Q.B. 334 at pp.
\n340341.<\/li>\n
\nInvestments Ltd v Margulies (1983) 47 P & CR 472 CA)<\/li>\n
\n(1924) [1924] 2 K.B. 119.<\/li>\n
\n(1989) 22 HLR 232<\/li>\n
\n(1989) 22 HLR 238<\/li>\n
\nCurtiss Airports Corp (1930)<\/li>\n<\/ul>\n
\n
\nLaw of Property Act 1925, s 205(ix)<\/p>\n
\n\u2018Property Law 1 Land Law Law Essays\u2019 (November 2013) <https:\/\/www.lawteacher.net\/free-law-essays\/land-law\/property-law-1-land-law-law-essays.php?cref=1.>
\naccessed 16 November 2017<\/p>\n
\n<\/a><\/p>\n
\nusque ad infernos ” As Applied In Aviation\u2019 < http:\/\/lawjournal.mcgill.ca\/userfiles\/other\/8509457-abramovitch.pdf<\/a>> accessed 19 November 2017<\/p>\n
\nArnold Duncan McNair, The Law of the Air<\/em>, (2nd<\/sup> edn,
\n1953) 31<\/p>\n
\n(1978) Q.B. 479<\/p>\n
\nv Earl of Northumberland and Mines [1568]<\/p>\n
\nSA v. Star Energy UK Onshore Ltd [2011] 1 A.C 380<\/p>\n
\nhttps:\/\/www.uclalawreview.org\/pdf\/55-4-4.pdf> accessed 17 November 2017<\/a><\/p>\n
\nv Skyviews and General Ltd [1978] QB 479<\/p>\n
\nBoard of Works v United Telephone Company (1884) 13 QBD 904<\/p>\n
\nv Skyviews and General Ltd [1978] QB 479<\/p>\n
\nTurner, Lauren Quinn and Thomas Murphy, The
\nLaw of Property in Northern Ireland<\/em> (1st<\/sup> edn, Colourprint
\nEducational 2014) 66<\/p>\n
\nWaites Ltd v Hambelton Court Ltd and others [2014] EWHC651 (Ch).<\/p>\n
\nv Melville [1973] 1 ALLER 385<\/p>\n
\nSA v. Star Energy UK Onshore Ltd [2010] 1 A.C 380<\/p>\n
\nTurner, Lauren Quinn and Thomas Murphy, The
\nLaw of Property in Northern Ireland<\/em> (1st<\/sup> edn, Colourprint
\neducational 2014) 64<\/p>\n
\nv Lawrence (1864) 2 De G.J. & Sm. 261<\/p>\n
\nv Imperial Tobacco Co. (of Great Britain and Ireland ) Ltd. [1957] 2 Q.B. 334
\nat pp. 340341.<\/p>\n
\nProperty Investments Ltd v Margulies (1983) 47 P & CR 472 CA)<\/p>\n
\nv Smith (1924) [1924] 2 K.B. 119.<\/p>\n
\nWaites Ltd v Hambelton Court Ltd and Others [2014] EWHC651 (Ch) at 50<\/p>\n
\nThe Law of Civil Aviation<\/em> (Sweet and
\nMaxwell 1936) 176<\/p>\n
\nv. Curtiss Airports Corp (1930)<\/p>\n
\n1953) 297.<\/p>\n
\nAbramovitch, \u2018The Maxim ” cuius est solum eius est usque ad coelum et
\nusque ad infernos ” As Applied In Aviation\u2019 < http:\/\/lawjournal.mcgill.ca\/userfiles\/other\/8509457-abramovitch.pdf<\/a>>
\naccessed 19 November 2017<\/p>\n
\nest usque ad coelum et usque ad infernos ” As Applied In Aviation\u2019 < <\/a>http:\/\/lawjournal.mcgill.ca\/userfiles\/other\/8509457-abramovitch.pdf<\/a>> accessed 19 November 2017<\/p>\n