The law concerning airspace and subterranean space appears to be exceptionally complex and to an extent even outdated. Sir William James’ attempt to clarify the law using the Latin maxim “cuis est solum eius est usque ad coelum et ad inferos”1 seems to have created even more legal uncertainty and appears to have done more harm than good. The maxim is now subject to vast exceptions as well as having been denounced by contemporary legal commentators and even senior judges.
This essay will explore the accuracy of Sir William James’ judgement; it will also question the argument that the maxim is still considered “the ordinary rule of law”2 and will look at how modern land law has gone about dealing with the legal confusion caused by this judgement, focusing primarily on airspace and subterranean space. Firstly, in order to explain the above statement, it may be beneficial to look closely at the facts of the case in which the judgement was made (Corbett v Hill 1870)3.
In brief, the case concerned the trespass of land where the claimant failed in attempting to seek an injunction to stop the defendant building a room over-looking the claimant’s property. After citing the maxim as being the “ordinary rule of law”4, Sir James admitted its exceptional level of legal ambiguity and even conceded that “no doubt, [the maxim] is frequently rebutted”5, especially in regards to “property in towns… [by]… other adjoining tenements”6.
Thus, in relation to the accuracy of the statement, one must appreciate the case is from the 19th century; during a time when technology had not progressed as much as it has today and accordingly airborne methods of transport had not yet been invented. This meant trespassing through the higher levels of airspace would not have been an issue and consequently, detailed legislation regarding the law of airspace may not have been considered necessary at the time.
Hence, it may be argued that Sir William James simply cited the maxim with the intention of it serving merely as a rough direction of law but, unaware of the rapid advancement of technology within the 21st century, and so the inventions of aeroplanes and other methods of aerial transport have subsequently required clarification within the law of airspace and have demonstrated the impracticality of applying the maxim in modern times.
Inevitably, the judgement has caused vast legal uncertainty and for this reason has been at the centre of immense criticism from both legal commentators7 as well as even senior judges. The suggestion that a land owner has complete control of “everything up to the sky and down to the centre of the earth” is not only practically unrealistic, but also, theoretically delusional which has resulted in Sprankling8 dismissing the maxim as merely a “poetic hyperbole”9 suggesting its over-dramatic implications regarding a landowners rights in airspace and subterranean land.
This criticism is supported by Lord Wilberforce who has openly criticized the maxims feasibility as being “sweeping, unscientific and impractical”10. Furthermore, its implication that land is only measureable on a two-dimensional level (in terms of its physical structure) is an argument that has been strongly dismissed by Gray and Gray (2009)11 who claim that portions of a land may be owned by several different owners and thus claim that “a transfer of a merely two-dimensional plot of land would have little meaning and even less utility”12.
They argue that a third dimension of land should have been recognised within the maxim and should now be explicitly acknowledged by the courts as they believe it can exist as “as an independent unit of real property”13. Gray and Gray (2009) further criticise the maxim for being “virtually worthless” suggesting it holds very little, if any, legal value in the modern legal system.
Hence, these strong dismissals and denunciations of the maxim by senior academics and legal professionals may be argued as representing the modern attitude towards it; suggesting its significance in modern land law is not as much as it was when cited in the 19th century or at the time of its creation. Inevitably, as a result of the vast legal ambiguity and immense criticism that the judgement has faced, a major attempt to rectify the confusion regarding airspace finally came about with the establishment of the terms “the lower stratum” and “the upper stratum”.
Although these terms appeared to contradict the maxim, they created a groundbreaking change in the law of airspace by splitting airspace into two categories. The lower stratum is that which was necessary for the landowners’ reasonable enjoyment. In Bernstein14 it was held that determining the requirement of “reasonable enjoyment”15 is dependent on the “type, height and size of the property”. Whereas, “the upper stratum” is “that which is above the height which is reasonably necessary for the ordinary enjoyment”16.
In Bernstein17, Griffiths J also stated that a landowner has no greater rights in the upper stratum than any other member of the public. This is also identically reflected with the obiter dicta of Lord Brown in Bocardo SA (2010)18 where he stated that “the air is a public highway”19 and if that was not true then “every transcontinental flight would subject the operator to countless trespass suits. “20 Both statements appear to be valid and rational as there can be no private ownership of airspace which is entitled to the public.
However, both of these statements appeared to be expressly undermined in Kelsen (1957)21 where it was held that the placing of an advertisement banner on (the upper stratum of) another person’s land, although did not interfere with the defendants “reasonable enjoyment”, yet still constituted a trespass. This judgement can be criticised on the basis that it appears to overtly contradict the basic judgement in Bernstein and the consequently conventional principle that the “upper stratum” is open for the use of the public and that the landowner has no greater rights to it over any other public.
However, in Liaqat v Majid22, Silber J justly diverged from the judgement in Kelsen23 and rightfully re-emphasized the principle established in Bernstein24 stating where the interference of land was at a height that “did not interfere with the claimant’s airspace”25 then it does not constitute a trespass. This principle was further re-emphasized in Manitoba and Air Canada (1978)26 in which the state of Manitoba argued that goods being sold on an aeroplane flying over Manitoba could be subjected to domestic taxing.
Prima facie, it appears that if the maxim is applied retrospectively then technically Manitoba’ argument should be accepted, however, the maxim was again dismissed by the court and the claim failed as they emphasized the judgement in Bernstein27 that there can be no ownership of the upper stratum. The inaccuracy of the maxim is further demonstrated by the enactment of The Civil Aviation Act (1982)28.
Section 76(1)29 discusses grounds for trespass30 and nuisance31 stating that no action can arise if an aircraft is flying over a property, providing it has shown consideration to the wind, weather and so long as “all circumstances of the case [are] reasonable”. The wording of this statute appears to be as equally ambiguous as the maxim itself in the sense that it leads to the question how would a mere bystander or a reasonable man know if an aircraft has had taken the wind and the weather into consideration and that all the circumstances of his flight are “reasonable” before establishing if his/her airspace had been trespassed?.
Although there are exceptions for aeroplanes landing and taking off, the general rule stated in the Rules of the Air (Amendment) Regulations 200532 is that it is not permissible for an aircraft to fly any “closer than 500 feet to any person, vessel, vehicle or structure. “33 Both statues have considerably clarified the confusion regarding invasion of airspace and have further demonstrated the inaccuracy of Sir James’ statement.
Additionally, Gray and Gray (2009)34 further go on to emphasise the importance of remedies for trespass in modern land law. In particular, the rise in privacy laws such as Article 8(i) of the European Convention on Human Rights35, which give landowners the “right to respect of his private and family life, his home and his correspondence”36, have also had a big impact on modern land law. The question that subsequently arises is how does the law protect a landowner from invasion of his airspace or “violation” of his convention rights?
The answer to this is damages are available on the grounds of “trespass”37 or “nuisance”38. It should be noted that “trespass” does not have to include damage to the property and can simply be interfering or crossing over onto another property without lawful consent. This is demonstrated in Lewvest Ltd (1982)39 where the court held that construction cranes which operated over the “upper stratum”40 of the claimant’s property constituted a trespass and thus, the defendants were required to pay damages.
Prima facie, this judgement can be criticised on the basis that there was no direct or indirect damage to the claimants property as the claimant did not even suffer any physical loss but it was merely the defendant attempting to make use and benefit out of the claimants airspace. Consequently it may also be argued that the cranes were being operated on the upper stratum of the claimants property as it was out of the level of that which was “necessary for the claimants reasonable enjoyment”41 and so under the Bernstein principle that there is no ownership of the higher stratum.
On the other hand, one can understand why the courts came about this judgement. In particular, the flood gates argument comes to mind in that, if the court held that large construction companies were able to use machinery over nearby property without facing any legal charges, this would cause an enormous influx of cases on the grounds of both trespass and nuisance. Hence, with the benefit of hindsight it appears that the judgement was valid. Similarly, there has been a substantial attempt to clarify the meaning, scope and invasion of “the lower stratum” through the aid of subsequent case law.
Everyday scenarios such as cutting off your neighbours overhanging branches have been declared lawful however, after cutting the branches off they must be returned to the neighbour (Lemon v Webb)42. Subsequently, taking the fruits off the branch either for personal benefit or to sell them on has been declared unlawful (Mills v Brooker)43. It may be argued that all these judgements (regarding both the upper and lower stratum) have drastically moulded the modern law of airspace in an attempt to adapt to the lifestyle of the 21st century; in particular acknowledging the development of technology and airborne methods of transport.
However, there still seems to be some unanswered questions which remain; for example, if a child playing football accidently kicks the ball over the fence does that encompass trespass? Alternatively, if you’re next door neighbour’s pet comes into your garden and eats the food you’ve left for your pet does that include trespass? Likewise, the decision in Lemmon and Webb (date)44 appears to answer the obvious question regarding over-hanging branches, but fails to explicitly recognise or answer the somewhat un-obvious questions.
For example, if someone puts their hand across the garden fence to try and cut a tree belonging to them but over-reaches onto their neighbours side of the garden; does this constitute trespass? Although, these are mere policy arguments and are not as common as the cases cited above, these scenarios should be taken into consideration by the courts and clarified before possible future cases arise and thus avert them from causing even more confusion regarding airspace.
In relation to subterranean land, the maxim has caused just as much legal uncertainty and confusion as it has in regards to airspace. Although, it is certainly true in stating that a land owner has rights to land under the soil, however, the suggestion that these rights go “down to the centre of the earth” is equally as misleading as the suggestion his rights go “up to the sky”. The general rule regarding subterranean land, in particular “treasure”, is that if an item found fits under the definition of treasure (as defined in the Treasure Act 1996)45 then it automatically belongs to the crown.
Under this definition, treasure is “any object at least 300 years old” with a metallic content of which at least 10% is “precious metal”. Subsequent case law has determined that, minerals, treasures and other inorganic substances which are found underneath the grounds of the owner all belong to landowner46. However there are exceptions regarding coal47 which has not been worked on and petroleum48; both of which belong to the Coal Authority and the Crown respectively.
Gray and Gray (2009) further state that the landowner has no absolute title to the water that flows through his/her land whether it is through a channel or river. Although, in Embrey (1851) it was declared that the landowner has the right to reasonably enjoy the flow of water, however, this was later amended in John Young & Co  where it was held that this right only exists providing that the flow of water or its purity is not diminished for others to use.
Likewise, in Fothringham (1984)49 it was held that the landowner has the right to fish in the water flowing through his land as far as he can reach by “normal casting or spinning”50. This was later strengthened and clarified in Nicholls51 where it was held that the landowner has the right to the fish once he/she catches and kills them they then become his/her property. As subterranean land is included within a landowners property, it is therefore possible to constitute trespass through the subterranean zone; the area beneath the land which is owned by the landowner.
Subsequent case law has demonstrated various ways in which trespass of the subterranean zone have occurred including trespass via entry to a cave as demonstrated in Edwards (1930)52 or alternatively by installing sewage and draining pipe underneath the owners land without lawful consent or authorisation from the landowner as was the case in Roberts (2001). 53 Consequently, before identifying if there can be a possible claim of adverse possession, there are certain statutory and common law requirements which need to be fulfilled.
These statutory requirements are listed within the Limitation Act (1980)54 which state that “no action can be brought by a landowner in an attempt to recover his land after the expiration of twelve years from the date on which the right of action accrued to him, or from the date on which the right accrued to some person through whom he claims”. The right of action is perceived as having accrued once a landowner has been dispossessed of his land or has discontinued use of it. In terms of airspace it is both practically and legally impossible for adverse possession of the higher stratum.
This is because the higher stratum has been identified as being “open for the use of the public”55. Likewise, in terms of adverse possession of subterranean land, though it appears theoretically and to some extent lawfully possible however, it appears impractical and unfeasible. Moreover, in regards to classifying landowners subterranean rights including that of adverse possession, legal commentator Dr Jean Howel56 suggests that the same test that has been applied by Griffiths J in Bernstein57 should also be applied to identify ownership of subterranean land.
This argument appears to be supported by the Supreme Court in Bocardo SA v Star where the court reduced damages in regards to subterranean trespass. They did so on the grounds that the defendants actions “occasioned no harm whatsoever to the land” and more importantly “it did not interfere with Bocardo’s [the claimant’s] use or enjoyment of its land”58. This judgement appears to be sensible and makes a substantial attempt to clarify the law regarding subterranean land by referencing the “reasonable enjoyment of land” principle established in Bernstein.
However, although the principle seems to be an established precedent, it may be criticised for lacking practicality in regards to how it can be applied to subterranean land. The biggest problem being how would one classify what is “reasonably necessary for enjoyment” in terms of land under the ground? It is not as easy as classifying the “lower and upper stratum of airspace” as subterranean land is not as widely used as airspace.
Hence, if Howel’s theory is applied, the courts will have the complex task in overtly establishing how far below the soil a landowner has rights to; with consideration to Gray and Gray (2009) who suggest that it is unlikely to be much further than “200 metres below the surface”59. Furthermore, one must clearly comprehend and differentiate the fact that Sprankling’s commentary in “Owning the Centre of the Earth”60 and opinions therein reflect his thoughts on American land law which, although can be compared to Britain in some respects, cannot be applied wholly or generalised entirely to British land law .