Property law 1 (land law)

Land law has and always will be of great importance to people, for a start; we all need somewhere to live. Whether it is freehold property or a leasehold property, we need to know our rights, our boundaries and the regulations and laws that govern us. That is why, even though land law has its roots deep in ancient times of old , it is still of huge importance in today’s ever expanding modern world. To begin , like the start of any law assignment , we will start with defining land. Defining land is not as straight forward as one might hope, for there is no single authorative , statutory definition . However a good starting point is the partial definition of “land" in the Law of Property Act 1925 (LPA 1925 ) S.205 (1) (ix) ;

“Land includes any of tenure , and mines and minerals, whether or not held apart from the surface , buildings or parts of buildings(whether the division is horizontal , vertical or made in any other way..." [1] 

The definition in this statute leaves a lot to be desired , for a start it is only a partial definition. It begins ; “Land includes" and what this means is land may include things that are not mentioned in this definition.

Land its definition and the question ;how deep do our property rights extend ? have all attracted debates and theories from many schools of thought . it is very central to the latin maxim; “ cuius est solum eius est usque ad coleum et ad inferos neccesam" which is usually translated in English to have the following meaning; “ the rights of the surface owner extend upwards to the heavens and downward toward the center of the earth" This was cited in the case of Corbett V Hill [2] . One must realise that the aged Latin maxim hardly helps with the definition of land and to what we own .In our modern society , would it actually be possible to own up to the heavens and to the center of the earth?

In John G Spranklings “owning the centre of the earth" [3] he recognises that because there has been such an advancement with our scientific technology as well as environmental changes such as global warming there is a need for us to recognise the need for a new “model" of subsurface ownership and in this article [4] he proposes and critically evaluates four alternative approaches to subsurface property rights. He argues that the owners rights should extend only 1000 feet below the surface , with an obvious exception to mineral (and treasure) rights . he understands that no human has penetrated below the crust . He states that “ no case holding; or statute resolves the question;and the center of the earth theory of subsurface rights is mere hyperbole [5] " . determing and coming to an understanding of where our rights extend is based on scientific and logical theories rather than legal ones. He concludes that “ given our modern and scientific knowledge and new advances in subsurface technology , we must now confront the equally foolish notion that the subsurface owner holds title to the center of the earth" he goes on to say “...lacking in either law or logic, the center of the earth approach is merely a curious relic from bygone age" [6] it is well established via scholars like Sprankling and Gray as well as case law that the latin maxim is outdated , its non consistent and the need for developments in the law is evidential ,Britain is seen as quite a “traditionalist “ country , the judge to set precedent for the development for departure from the maxim will have to be not only brave but in an essence , radical.

When we take in to account of other scholars work, for example grey , on the subject of “ air space" as opposed to Sprankling was mainly on the rights below the ground and to where they should extend we see that they are supportive in one anothers views of disembarking from the"solem" approach.the subject is tackled by intellect , logical reasoning , the extensive knowledge of how our modern world is and what is available to us at a whim.

Kevin Grey states in Property in thin air [7] on page two of his journal that ;" whatever the maxim cuius est solum .... to the common lawyer of earlier centuries it has since become obvious that its legal meaning is now heavily qualified by the advent of more recent technologies “ he acknowledges like Sprankling the lack of knowledge in Blackstones era in regards of geology also that science and technology has progressed to a level so advanced , Grey recognises that which , although it is hard to determine land in the modern world we need to take a logical and clear approach. Grey notes that for legal purposes there must be a clear distinction between the upper and lower stratums of airspace although it is agreed that the maxim cuius est solum ... has no relevance at all to the Higher of the strata and if the “usque as coelum" was to be taken seriously [8] it has now been restricted to landowners rights over airspace are clearly restricted to the"lower sratum" which is basically the immediate superadjacent airspace which the landowner can reasonably enjoy and have a purpose for the use of his land at ground level. As Justice Douglas once said in the United States Supreme Court [9] , the landowner must have “ exclusive control of the immediate reaches of the enveloping atmosphere" since otherwise “ buildings could not be erected , trees could not be planted , and even fences could not be run" . Grey further acknowledges that that upper stratum does not belong to anyone but the world he says it falls into the category of res omnium communis [10] (space as the common heritage of mankind) .Although with regards to the boundary between the upper and lower stratum and where it begins and ends this has never been fixed. Although there is a range of cases and laws along with a bit of logical thinking from scholars which make it a bit clear to us. In most cases the lower stratum is unlikely to reach beyond an altitude of 200metres above the roof of a house, flat building etc . if it were to do otherwise this would result in in an action for trespass by every plane which passes over a suburban garden [11] and i suppose in regard to the “floodgates arguements" for claims it is more beneficial to have a plain recognition in common law [12] and in modern legislation such as the Civil Aviation act [13] where it states that in Britain, no aircraft may ever fly “ closer than 1500 feet to any person, vessel, vehicle or structure" [14] although an exception is made for aircraft “while landing or taking off [15] and even for gliders “ while hill soaring" [16] . We have learnt that from the case of Bernstein of Leigh (Baron) v Skyviews and General Ltd (1978) Q.B. 479 that the higher stratum of airspace is not part of owners property although in certain circumstances like the case of Woolerton and Wilson ltd v Richard Costain ltd (1970) 1 W.L.R. 411, 413D you may base an action in tort for trespass if control of the lower stratum was necessary for owner to have reasonable use and enjoyment of land.

Any intrusion of a landowners property will amount to trespass, this can be seen from the following examples; if the branches of your neighbours tree where to overhang onto your land, you are entitled without giving prior notice [17] to chop off the branches which intrude into your airspace [18] , so long as you do not enter upon your neighbours land for that purpose [19] . Just like it would be trespass by overhanging eaves [20] , advertising signs [21] and by the jibs of sky cranes [22] .

The landowner owns the subterranean space below the surface of their land. He can dig down into it to form a cellar or underground room. As S.205(1)(ix) [23] states, Mines and minerals form part of the land , however certain minerals do not belong to the landowner but infact the state. Silver and Gold belong to the Crown as of right ; the Case of Mines [24] (1568) ( or R v Earl of Northhumberland). The Crown is also entitled to oil, petroleum , coal and natural gas by statutory right , this can be seen in The Coal Industry Act 1994 and the Petroleum Act 1998. In addition to this , the Crown has the right to treasure found in the land. The law on Treasure is determined within the Treasure Act 1996. It states that items of 2 to 9 coins which are 300 years old and at last ten percent precious metal will be regarded as Treasure. If ten or more coins are part of the same find , they need not be ten percent precious metal. The Treasure Designation Order (2002) extended the Treasure Act 1996 so that any prehistoric base metal object would be regarded as treasure.

Land is therefore three dimensional, there is the surface of the land, the ground beneath the surface of the land and of course the airspace . different people can own different strata (levels) of land.

For example , my parents bought a house in Bedwelty which is built on land above the coalfield there, they will own the surface of the land (and of course the house built upon it) but the land beneath the surface , with the coal in it, may very well be owned by the British Mining Company.

This three d-dimensional extent of land can also be important if land borders a roadway. There is a presumption that the landowner owns the subsoil of the roadway adjoining their land up to the middle of the roadway ; ad medium filum ( to the mid line, as they often say) . Landowners can construct cellars that extend into this space below the ground, like many of the pubs have done in Wind Street with the use of trap doors to enable delivery of barrels to the cellar ( not that I would say to a fellow Law student whilst on a night out; “ hasn’t that land owner made marvellous use of their subterean space?").

So is it really possible to claim adverse possession of airspace and subterranean space? Firstly a good start would be asking what is adverse possession and what does it entail?

Acquiring land by “Adverse Possession" is the process by which a person who is not the legal owner (e.g. A squatter) of the land can become the owner of the land after occupying it for a defined period of time [25] .Dealing first with unregistered land, to acquire title by adverse possession the squatter must show he has had exclusive possession without the consent of the true owner for 12 years. The most common and best evidence for this is that the land has been fenced off so that only the squatter has access to it. Hence it is very difficult to acquire title to paths and roadways, which many people could use. Similarly, for example i have a neighbour who occasionally parks his car on my land , this would not be a ground for a claim of adverse possession.

Obviously for registered land it is slightly different. The Land Registration Act 2002 has reduced the required period to 10 years (the old rules still apply if a person had adverse possession for more than 12 years before the act came into force on Oct 13 2003). But it has made it much more difficult to gain title this way , hence that is why although there are over 20,000,000 registered properties in England and Wales, only just over half of the land mass is registered. Much of this land is rural property in the hands of large institutional landowners such as the Church of England, educational institutions , the Ministry Of Defence and the Crown. Registration of land under the Land Registration Act 2002 affords property owners some protection against squatters as well as avoiding the need to produce old documents each time a property changes hands.

The application for adverse possession will be automatically rejected unless the squatter can make out one of three grounds;factual possession Powell V McFarlane [26] , an intention to posses the land and all three criteria has been met for at least 12 years (if the period ends before 13 October 2003) or at least 10 years (if the period ends after 13 October 2003 [27] ).

Lastly, the squatter may have been in adverse possession of land adjacent to their own under the mistaken but reasonable belief it belonged to them. This only applies if the boundary has not been determined by the Land Registry (and it is very rare for it to determine boundaries) and where the land has been registered for more than a year. Most Adverse possession claims arise from this and the "general boundaries rule" [28] means one cannot rely on Land Registry plans to define a property [29] exactly .It is often very difficult to prove from old deeds where the legal boundary is. So if someone can show that his garden fence has been in its current position for at least 10 years, he should be able to acquire title to any land on his side even if the neighbour can show the legal title is theirs.

If we now consider Trespass to land has been recognised as a cause of action in tort for many years. It arises whenever there is an unlawful presence on or interference with another’s land. [30] 

Unlike an action for nuisance, trespass to land is actionable without proof of damage. Common examples include:

Unlawful entry: The extent of the entry is irrelevant. [31] 

Invasion of the airspace by an overhanging item or structure [32] .

It is accepted that the law protects not only against intrusions onto the surface of land but also against those above and below it. This stems from the dictum “cuius est solum, eius est usque and coelum et ad infernos" - whoever owns land owns it all the way up to heaven and down to hell - that has applied since 1766.

In Bocardo [33] , Lord Hope maintained that the phrase “still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance."

In that case, it was determined that possession of land extends to the strata below it, so that the drilling of wells to a depth of around 2,800ft amounted to an actionable trespass Some may have found this decision surprising. [34] It may appear that the tort of trespass affords a landowner extensive possession rights, but the law has developed to allow a party to gain access to land belonging to another in certain circumstances [35] .

If we consider the recent case of Stadium Capital Holdings ( no2) ltd v St Marylebone Property Company PLC (2009) [36] it should be noted that , the court upheld the principle that a freehold owner of land owns both the airspace above the ground and the subsoil and also that it is not possible to aquire title to land by adverse possession if the land is occupied with consent. Therefore i can conclude from this that there should not be any doubt that it is theoretically possible to be in possession of airspace because if real property is capable of ownership it is surely capable of being adversely possessed , subject to the test for actual possession which is adverse to the paper owner and the requisite animus possidendi being met.Subterranean space and airspace can be owned as they are part of the 3 –dimensional take on land; there is the surface of the land, the ground beneath the surface of the land and of course the airspace therefore they can be adversely possessed.

How accurate is the statement ; “ now the ordinary rule of law is, that whoever has got the solum-whoever has got the site –is the owner of everything up to the sky and down to the centre of the Earth? [37] I think this statement would have been accurate for that period in time but not ours. And why? Simply because of modernisation and greater scientific understanding of geology. The problems that the Latin maxim might give rise to as man’s

understanding of the earth’s structure improved, airspace began to be used for the

passage of aircraft and means were developed to penetrate deep below the

surface were not, of course, obvious in the 19th century and certainly not in the 13th century.

Sprankling, “Owning the Center of the Earth" [38] , points out however that most modern US legal texts continue to endorse the centre of the earth theory and that almost all modern cases continue to embrace it too…Addressing himself to the question, how far below the earth’s surface do property rights extend, he asserts at p 1033 [39] that the surface owner should certainly hold property rights to a portion of the subsurface. After exploring four alternative models [40] he comes down in favour of a specified depth such as 1000 feet, but he acknowledges that reasonable minds may differ as to the appropriate extent. The goal of his article, he said, was to ignite that debate, not to extinguish it: p 1039.

Dr Jean Howell, “‘Subterranean Land law’ [41] acknowledges that it might be argued that the same test as that which GriffithsJ applied [42] should be used for land below the surface. But, as she also notes, it was implicit in that case that even above the notional height at which the land owner’s usable rights stop, there is not a free for all in the airspace above. To characterise the surface owner’s rights as following technological advances as to the depth at which land can be exploited, she says, would offend against all notions of “property" whose defining quality in land is certainty. She concludes, at p 285 [43] , that any intrusion into land which is not sanctioned by some countervailing property right will be a trespass and that, although the surface owner will not usually wish to or be able to utilise the ground below the surface, he has rights in the land which could be valuable. Although scholars, case law and academics alike try to define a scope of where our property rights begin and end in reference to airspace and subterranean space the slightly outdated but relevant latin maxim will remain a part of our law today. The british courts seem reluctanct to let go of what seems to be quite a traditional maxim , the courts are well known for being very conservative and they seem to avoid doing anything radical or perhaps that although its validity could be questioned due to our modern society perhaps its importance and acceptance of the maxim simply cannot be questioned.

In Bocardo SA v Star Energy Onshore Ltd [2010] UKSC 35; [2010] 3 WLR 654, Lord Hope maintained that the phrase “still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance."