Latin Maxims in Property Law

Within this essay I intend to discuss the meaning of the Latin maxim, “cuius est solum eius est usque ad coelum et usque ad infernos” 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.

The key statue when determining the definition of land is the Law of Property Act 1925 in which section 205(ix) states that ‘land’ 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]  The degree of ownership to this land was encompassed in the thirteenth century Latin maxim; “cuius est solum eius est usque ad coelum et usque ad infernos.” The translation of this maxim was made in the case of Corbett v Hill [1870] to express that the surface owner’s 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’s modern society.[2] Lord Wilberforce remarked on it as being ‘so sweeping, unscientific and unpractical that it is unlikely to appeal to the common law mind.’[3]

This Latin maxim was devised long before mankind anticipated the production of aircrafts and has been misapplied due to being pitifully misunderstood when relating to the upward limit. It has led to confusion between space, which is not capable of being reduced to ownership, and with air, which is.[4] It cannot be indubitably affirmed that the law is devoted to the perspective that the concept of space can be subject of ownership inconclusive of its contents leading to the suggestion that the meaning of the maxim should be viewed as “whosoever owns a portion of the surface of the earth, also owns anything below and anything above that portion, that may be capable of being reduced into private ownership”.[5] However, while it is convenient to describe ownership as having maximum rights to the particular thing in question, it is wrong to state that the individual is therefore entitled to do anything he or she desires with it.[6] The initial view was that the landowner should acquire no rights to the air above him whatsoever based on the concept that the air should be free for all to use therefore cannot be subject to ownership. This view was then changed to state that the landowner could actively own the air above him, but uncertainty remained as to the extent of rights he would have to it. Some argued that his rights should be limited to allow only those needed for enjoyment of his property however others would argue that the landowner should have full proprietary rights of the airspace above his property. In the case of Leigh (Baron) v Skyviews and General Ltd (1978) Q.B. 479 the court described the expression of ad coelum as ‘colourful’ but continued to say that the owner of the land has rights to the air that is immediately above the land in question therefore the right to the higher stratum of airspace above the property was not that of the landowner’s, it will only extend to what is ‘necessary for the ordinary use and enjoyment of the land and structures upon it’.[7]

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] 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] However this decision has since been restricted by s.43 of the Infrastructure Act 2015 to facilitate activates such as ‘fracking.’ Section 43 permits the exploitation of land below depths of 300m beneath the surface without liability to trespass. In the writing of ‘Owning the Center of the Earth’, John G. Spankling implied that ownership should only extend to depths of 1,000 feet.[10] 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’s rights extend both downwards into the subterranean and upwards into the airspace.

When case law is studied to determine the landowner’s rights to the airspace above him, no clear answer is found, only that the landowner is entitled to what is “necessary for the ordinary use and enjoyment of his land and the structures on it.”[11] 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] 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 “..to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden.”[13] After this judgement, the landowner’s rights were restricted to a ‘reasonable’ 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]

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; “..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.”[15] 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 “a purchaser does not expect to find the vendor living mole-like beneath his drawing room floor.”[16] 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] 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 ‘down to the centre of the earth.’ 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]

The difficulty in determining who possesses the right over airspace and subterranean soils heightens when the building, located in the area under question is inhabited by tenants. The courts have witnessed many ‘who owns what’ cases in relation to flats, tenancies and flying Freeholds. Under the concept of ownership, landowners bear the right to sell or lease the corridor of airspace above his land without discarding his ownership over the surface beneath it. If the landowner decides to build another two storeys onto is property and lease them as separate flats then it is impossible to apply the latin maxim, cuius est soleum eius est usque ad coelem et ad inferos on the grounds of the strict limit the conveyance has on the dimension of ‘land.’ The right that a tenant occupying the top flat has to the airspace above and the right of the tenant occupying the ground flat to the subsurface below will depend entirely on the wording contained in the lease between themselves and the rightful landowner. If the wording is deemed unclear, it is presumed that the rights to the airspace or subsoil have been transferred to the tenant.[20]  However, if the roof has been excluded in the contract completely, it is automatically concluded that the tenant will possess no right to the airspace above for the duration of the lease but if it has been exclusively included then the landowner’s rights to the airspace will be transferred to the tenant therefore judges must analyse the wording of cases thoroughly. If they are unable to establish if the roof has been included or excluded, any restrictions placed on the tenant must be considered. For example, a restriction on placing items on the roof of the flat would indicate that the tenant has been granted entitlement to the airspace but under limitations.[21]  If the tenant decides to purchase a ‘flying freehold’, issues arise that are often disputable. They will become dependent on the owners of the flats both beneath and above them. In an attempt to deal with these issues, a new approach to the law in this area has been developed, named the ‘commonhold.’ However, it is likely that the landowner will still be considered as the owner of the entire building and possess the right to evict a tenant at any time.

Case law relating to properties containing many horizontal layers also do not give a definite answer to how far a landowner or tenant’s rights extend into the subsurface or airspace. An important case in this area of law is the case of Graystone Property Investments Ltd v Margulies (1983), Within this case it was established that, unless stated otherwise in the lease, the tenant has the right to utilise the entire space between the floor of the flat he occupies and the underneath of the flat overhead.[22] When this case is then applied to the top flat, the common presumption taken by the courts excludes the airspace above from the tenant’s rights unless the contract states otherwise. It was held in both the cases of Davies v Yadegar (1989) 22 HLR 232 and Haines v Florensa (1989) 22 HLR 238 that, if a lease included the roof then the tenant had the absolute right to the airspace above. Cockburn v Smith (1924) 20 followed the precedent of consulting the wording of the lease in an attempt to determine the tenant’s rights. Within this case Bankes LJ stated that it was not acceptable to make a tenant liable to pay for a leaking roof if the lease described the flats as “a suite of rooms” ,saying that “… The contention that because the rooms include the walls therefore they include the roof also in one which I cannot assent to.”[23] In the case of H Waites Ltd v Hambelton Court Ltd and others [2014], permission to build on top of leased garages was not permitted as limitations to the airspace above were not included in the lease therefore Morgan J. concluded that “…I consider that where one is dealing with a demise of a building, 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. My final view is that, in this case, the demise of a garage includes the airspace above the garage.”[24]

In conclusion, maxims are not law hence they should be approached with caution. “A maxim is a signpost which directs the traveller, but does not choose the destination”[25] therefore reference to them is often criticised as they are not of the same effect as legal rulings. In the case of Swetland v. Curtiss Airports Corp., maxims were described, by Sir Fredrick Pollock, as being “attempted general statements of law” that should be viewed as “a symbol or vehicle of the law” only.[26] They are often used as a convenient method of portraying law with Lord McNair going as far to say that they are “used either to darken counsel, or to afford a short cut and an excuse for not thinking the matter out.”[27] From the cases that I have discussed above, it can be said that the ‘ad coelum’ theory cannot be regarded and never has been regarded as law in the field of aviation. The maxim “has become nothing but a clog around the neck of the development of the law”[28] as its application in aviation cases is often denied but it is still granted as a plea for those who believe that they have been seriously affected by aircraft activity above their property or by an airport being in the vicinity of their home.[29] The law must be adapted to coincide with the modern, ever changing society today however the courts still appear reluctant to arise the traditional maxim completely whether it be to avoid taking radical actions or on the concept that the maxim has gained much importance and acceptance over many years.[30] In the case of Bocardo, Lord Hope maintained that it “still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance.”[31] However, I believe that it is not acceptable to extensively use this maxim merely because it is generally accepted. Its vague reflection of law is restricting the process of creating a definite law within this area as the extent to which a person’s rights to the airspace above their property and the subterranean below it are still uncertain when case law is considered. Legislation and case law have, however, set out basic principles which can be followed in a case relating to the ownership of various aspects of a property successfully but need to be consulted carefully in order to establish the boundaries in which a landowner’s rights are enclosed.

Bibliography

Books:

• Moller, The Law of Civil Aviation (Sweet and Maxwell 1936)
• McNair A.D, The Law of the Air, (2^nd edn, 1953)
• Turner C, Quinn L and Murphy T, The Law of Property in Northern Ireland (1^st edn, Colourprint educational 2014)
• Thompson MP and George M, Modern Land Law ( 6^th edn, Oxford

Online Journals:

• Yehuda Abramovitch, ‘The Maxim ” cuius est solum eius est usque ad coelum et usque ad infernos ” As Applied In Aviation’ < http://lawjournal.mcgill.ca/userfiles/other/8509457-abramovitch.pdf> accessed 19 November 2017
• John G. Sprankling, ‘Owning The Center of the Earth’ < https://www.uclalawreview.org/pdf/55-4-4.pdf> accessed 17 November 2017

Websites:

• LawTeacher, ‘Property Law 1 Land Law Law Essays’ (November 2013) <https://www.lawteacher.net/free-law-essays/land-law/property-law-1-land-law-law-essays.php?cref=1.> accessed 16 November 2017

Legislation:

• Law of Property Act 1925
• Coal Industry Act 1994
• Mineral Development Act (N.I.) 1969
• The Treasure Act 1996
• The Treasure Designation Order (2002)
• Infrastructure Act 2015
• The Civil Aviation Acts 1949 and 1982
• Regulatory and Investigatory Powers Act (2000)

Cases:

• Commissioner for Railways v. Valuer-General [1974] A.C 380
• Corbett v Hill [1870]
• Leigh (Baron) v Skyviews and General Ltd (1978) Q.B. 479
• Bocardo SA v. Star Energy UK Onshore Ltd [2011] 1 A.C 380
• R v Earl of Northumberland and Mines [1568]
• Wandsworth Board of Works v United Telephone Company (1884) 13 QBD 904
• Bernstein v Skyviews and General Ltd [1978] QB 47
• H Waites Ltd v Hambelton Court Ltd and others [2014] EWHC651
• Grigsby v Melville [1973] 1 ALLER 385
• Elwes v Brigg Gas Company (1886) 33 Ch.D. 562
• Martyr v Lawrence (1864) 2 De G.J. & Sm. 261
• Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland ) Ltd. [1957] 2 Q.B. 334 at pp. 340341.
• Graystone Property Investments Ltd v Margulies (1983) 47 P & CR 472 CA)
• Cockburn v Smith (1924) [1924] 2 K.B. 119.
• Davies v Yadegar (1989) 22 HLR 232
• Haines v Florensa (1989) 22 HLR 238
• Swetland v. Curtiss Airports Corp (1930)

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[1] Law of Property Act 1925, s 205(ix)

[2] LawTeacher, ‘Property Law 1 Land Law Law Essays’ (November 2013) <https://www.lawteacher.net/free-law-essays/land-law/property-law-1-land-law-law-essays.php?cref=1.> accessed 16 November 2017

[3] Commissioner for Railways v. Valuer-General [1974] A.C 380

[4] Yehuda Abramovitch, ‘The Maxim “ cuius est solum eius est usque ad coelum et usque ad infernos ” As Applied In Aviation’ < http://lawjournal.mcgill.ca/userfiles/other/8509457-abramovitch.pdf> accessed 19 November 2017

[5] Sir Arnold Duncan McNair, The Law of the Air, (2^nd edn, 1953) 31

[6] Mark P. Thompson and Martin George, Modern Land Law ( 6^th edn, Oxford) 11

[7] Leigh (Baron) v Skyviews and General Ltd (1978) Q.B. 479

[8] R v Earl of Northumberland and Mines [1568]

[9] Bocardo SA v. Star Energy UK Onshore Ltd [2011] 1 A.C 380

[10] John G. Sprankling, ‘Owning The Center of the Earth’ < https://www.uclalawreview.org/pdf/55-4-4.pdf> accessed 17 November 2017

[11] Bernstein v Skyviews and General Ltd [1978] QB 479

[12] Wandsworth Board of Works v United Telephone Company (1884) 13 QBD 904

[13] Bernstein v Skyviews and General Ltd [1978] QB 479

[14] Catherine Turner, Lauren Quinn and Thomas Murphy, The Law of Property in Northern Ireland (1^st edn, Colourprint Educational 2014) 66

[15] H Waites Ltd v Hambelton Court Ltd and others [2014] EWHC651 (Ch).

[16] Grigsby v Melville [1973] 1 ALLER 385

[17] Bocardo SA v. Star Energy UK Onshore Ltd [2010] 1 A.C 380

[18] Elwes v Brigg Gas Company (1886) 33 Ch.D. 562

[19] Catherine Turner, Lauren Quinn and Thomas Murphy, The Law of Property in Northern Ireland (1^st edn, Colourprint educational 2014) 64

[20] Martyr v Lawrence (1864) 2 De G.J. & Sm. 261

[21] Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland ) Ltd. [1957] 2 Q.B. 334 at pp. 340341.

[22] Graystone Property Investments Ltd v Margulies (1983) 47 P & CR 472 CA)

[23] Cockburn v Smith (1924) [1924] 2 K.B. 119.

[24] H Waites Ltd v Hambelton Court Ltd and Others [2014] EWHC651 (Ch) at 50

[25] Moller, The Law of Civil Aviation (Sweet and Maxwell 1936) 176

[26]Swetland v. Curtiss Airports Corp (1930)

[27] Sir Arnold Duncan McNair, The Law of the Air, (2^nd edn, 1953) 297.

[28]Yehuda Abramovitch, ‘The Maxim ” cuius est solum eius est usque ad coelum et usque ad infernos ” As Applied In Aviation’ < http://lawjournal.mcgill.ca/userfiles/other/8509457-abramovitch.pdf> accessed 19 November 2017

[29] Yehuda Abramovitch, ‘The Maxim ” cuius est solum eius est usque ad coelum et usque ad infernos ” As Applied In Aviation’ < http://lawjournal.mcgill.ca/userfiles/other/8509457-abramovitch.pdf> accessed 19 November 2017

[30] LawTeacher, ‘Property Law 1 Land Law Law Essays’ (November 2013) <https://www.lawteacher.net/free-law-essays/land-law/property-law-1-land-law-law-essays.php?cref=1.> accessed 16 November 2017

[31] Bocardo SA v Star Energy Onshore Ltd [2010] UKSC 35; [2010] 3 WLR 654