Land Ownership = Total Control

The sample essay on He Who Owns Land Owns Everything Reaching Up To The Heavens And Down To The Depths Of The Earth deals with a framework of research-based facts, approaches and arguments concerning this theme. To see the essay’s introduction, body paragraphs and conclusion, read on.

This report will look into how far the Latin maxim “cuis est solum eius est usque ad coelum et ad inferos” or “he who owns the land owns everything reaching to the heavens and down to the centre of the earth” still holds true today.

Gray and Gray (2009) state that the Latin maxim traces back to medieval times when its meaning held true. However in modern property law, there is evidence to suggest this does not hold true today.

In Bernstein of Leigh (Baron) v Skyviews & General Ltd1, it was declared that the rights of the owner are limited to a height that is necessary for the owner to use and enjoy his/her land and above that height the owner of the land has no more right than any other ordinary person of the public.

Today there are hot air balloons, aircrafts etc which makes it necessary to balance the rights of airspace between fee simple and the public. The Civil Aviation Act 1982, s 76, also reinforces the concept of how the owners airspace is now restricted to a lower level than it once was.

Who Own Earth

Section 76 of the act restricts the fee simple’s right to sue aircraft in trespass or in nuisance providing the aircraft flies over the property at a reasonable height.

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The restriction imposed by the Civil Aviation Act 1982, s 76, states no action whatsoever shall prevail providing it the aircraft does not affect the fee simple’s ordinary use or enjoyment of his/her property. However Gray and Gray (2009) show that aerial trespass can result from low flying aircraft2. Hence the flying height of aircraft should abide by The Civil Aviation Act 1982, s 76.

This is supported by Justice Douglas3 who stated, the landowner must have “exclusive control of the immediate reaches of the enveloping atmosphere” or “buildings could not be erected, trees could not be planted and even fences could not be run”. This part of the airspace is known as the “lower stratum”. Whereas in contrast Gray (1991) states that the “upper stratum” which is beyond the lower stratum is open to exploitation by all. However Gray (1991) gives rise to the example of People v.

Cook4 where the Supreme Court of California recognised that the owner of the property in the lower stratum is open to invasion of privacy via inspection from those that may be passing the property in the upper stratum. Gray and Gray (2009) emphasise how the importance of visual trespass has become more important today. For example importance of privacy laws, the emerging law of harassment and ECHR Art 8(i) (“the right to respect of his private and family life, his home and his correspondence”) have made visual trespass a concern within the area of property law. This shows that although property is thought to be divided into layers.

Although the lower layer belongs to the fee simple to a region up to where the owner can reasonably use it and enjoy it. This questions the vulnerability of the owner’s land to those above it. Hence if the fee simple’s property is vulnerable to those above it. It raises the question can any of it be said to truly be the owner’s if its privacy can be so easily compromised. However there is a counter-argument which challenges this as it can be seen that the onus lies with the owner to protect those activities on their property that they wish to protect from those external to their property5.

Damages may also need to be paid for trespassing whether or not trespass caused actual damage to the owner of the land6. This case showed that sky cranes trespassing over another’s property for the purposes of construction had to pay compensation even though no direct damage to the fee simple was caused. By using the cranes over the fee simple’s property, it saved the building contractor $500,000. It was ruled that compensation for the fee simple should result where economic advantage is made by the use of property of another. This can in effect be thought of as it being necessary to rent the property by the party requiring use.

Although no direct damage is caused by the trespasser, the fee simple does incur a loss and the third party benefits from the fee simple’s property; whereas the trespasser profits from the property of the fee simple. While the first maxim “cuis est solum eius est usque ad coelum et ad inferos” (he who owns the land owns everything reaching to the heavens and down to the centre of the earth), imposes restrictions, another Latin maxim “superficies solo cedit” (a building becomes part of the ground or “solum”) has the effect of granting extended rights, this was illustrated in Rogers (Inspector of Taxes) v.

Longsdon7 where an artificial heap of waste was held to have become part of the land once trees and grass started growing on it. Thus a house or other structure which cannot be removed without demolition or destruction is presumed to have been intended to “form part of the realty” as stated by Lord Lloyd of Berwick8. A top floor of a high rise block of flats would also constitute as being “land” as would a dry stone wall which inheres in the landscape in such a way as to “become part of the land”9.

The Interpretation Act 1978, Sch 1 provides that “land” includes buildings and other structure, land covered with water, and any estate, interest, easement, servitude or right in or over land. It is not only actual ‘buildings or parts of buildings’ but also anything that attaches to them in such a way as to become a “fixture”. There are two types of items fixtures and chattels; Luther (2004) states their distinction is elusive. When looking at whether an item is a fixture or chattel, it is usual for judges to refer to two tests from Blackburn J in Holland v. Hodgson10.

The basic principle here is that if an item is attached to the land it is usually a fixture, whereas chattels do not attach to the land but rest on their own weight. The noteworthy point here is that fixtures that are between the land and the heavens do form part of the owners land but chattels may not belong to the owner and if the property was bought from a previous owner, the previous owner has the right to remove any chattels that are still inside the property he has sold even though they currently sit between the earth and the heavens of the new fee simple who has just bought the property.

This shows that not everything between the centre of the earth and the heavens forms part of the owners land. It is also of note that chattels do not form part of the land under the tests which is why it does not form part of the land even though the chattel may be on his property but a chattel could belong to the owner of the land just as it could belong to someone else or the previous owner.

Regarding subterranean zones, Gray and Gray (2009) state that English law recognises that the owner has the right to at least some of the land under the soil but the Latin maxim’s declaration that the owner owns everything to depths as far as the centre of the earth is a little misleading in modern property law. Bradbrook (1987 cited by Gray and Gray (2009) states that the land owners rights are unlikely to reach further than 200 metres beneath the surface of the land. Minerals and other inorganic substances that are found beneath the grounds of the owner belong to him11.

However there are exceptions regarding coal12 that is yet to be worked on and petroleum13. They belong to the Coal Authority and the Crown respectively. The subterranean forms part of the owners and therefore it is possible to trespass on the owners land in the subterranean zone i. e. underground as far down as is regarded to be the owner’s land. Trespass may arise via entry to a cave under the owners land14 or by installing a sewer pipe15 under the owner’s land without authorisation from the owner of the land.

Gray and Gray (2009) illustrated that the owner of the land has no absolute title to the water itself flowing through his land through a channel (i. e. river). The owner has the right to reasonably enjoy16 the flow of the water without diminishing17 the flow of the water or its purity to those further down the channel. The owner has the right to fish in the water flowing through his land as far as he can reach by normal casting or spinning18. The owner also has right to the fish once he kills and catches them and they become his absolute property19.

Conclusion The Latin maxim of, “he who owns the land owns everything reaching to the heavens and down to the centre of the earth” does not hold true in modern property law. This notion was perhaps true when it was first realised dating back to the medieval times. However with the evolution of science and technology, much has become possible with items such as aircraft, hot air balloons and other things that would not be possible to use if all property stretched from the centre of the earth to the heavens; every aeroplane or helicopter would be trespassing.

Hence as far as to what extent the concept of how far this Latin maxim is still valid in today’s society is concerned. It does not hold true. In general, it is thought that the owner’s property extends to 200 metres below the surface of the ground and that it is unlikely to be higher than 200 metres above roof level. These measurements are not stipulated but it is a rough estimate as it gives the owner the right of space above and below his land from which he can fully benefit from the use his land and use it reasonably for enjoyment.

It was also found that the owner of the land owns the land and the buildings upon it, the associated fixtures, minerals and other inorganic substances are said to be the fee simple’s, the right to enjoy reasonably any water passing through his land with causing the water any damage and the fish within the water become his absolute property. However it was also found that although chattels may be on the owners land he may not own them which may allow them to be recovered by the owner.