THE PHYSICAL LIMITS OF REAL PROPERTY.

Week 8 Lecture 1: From 11 minutes onward

 Land, the question is what goes with that? The airspace above the house, everything beneath
the house. Question of the physical boundaries of the land?
 The surface. One preliminary question as to fixtures. When you own land, you’re said to own
soil and anything attached to it. IE a building. It becomes part of the land. Superficies solo
cedit.
 Superficies solo cedit (a maxim which translates roughly as “a building becomes part of the
land”): subject to the possible operation of proprietary estoppel, the general rule is that
anything which is attached to real property becomes part of the realty and belongs to the
owner of the real property in question.

This gives rise to the law of fixtures. There are two aspects to the test about fixtures:

1) The degree of attachments/annexation.

2) The (objectively defined) purpose of that attachment/annexation

o Example: Would be important when purchasing a house. Nice marble fireplace. When
purchased it’s been taken out. The law of fixtures decides whether this fireplace was a fixture
and whether the previous owners were able to do that.
o Elitestone v Morris [1997] 1 WLR 687 (bungalow resting by its own weight on concrete
pillars, without any attachment, held to be a fixture); By being put down there was regarded
as a fixture.
o Leigh v Taylor [1902] A.C. 157 (securely attached tapestry held not to be a fixture). For the
purposes of enjoying it there it was regarded as an item of personal property.

Turn to another Maxim: cuius est solum eius est usque ad coelum et usque ad inferos: the owner of
the soil owns up to the heavens and down to hell. Thus, to some extent at least, land is a three
dimensional corridor of space. The difficult question is to decide how seriously to take the above
maxim.

- How seriously is this statement regarded, particularly when it was made during a time when
there was no facility to fly at all.

There is a Statutory definition of Land:

Land and Conveyancing Law Reform Act 2009, s.3 contains the following definition of land:

‘“land” includes –

(a) any estate or interest in or over land, whether corporeal or incorporeal,

(b) mines, minerals and other substances in the substratum below the surface, whether or not
owned in horizontal, vertical or other layers apart from the surface of the land,

(c) land covered by water,

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(d) buildings or structures of any kind on land and any part of them, whether the division is
made horizontally, vertically or in any other way,

(e) the airspace above the surface of land or above any building or structure on land which is
capable of being or was previously occupied by a building or structure and any part of such
airspace, whether the division is made horizontally, vertically or in any other way,

(f) any part of land’.

Up to the Heavens: idea of airspace

Cases

Kelsen v Imperial Tobacco Co [1957] 2 QB 334 (Westlaw.uk): tort of trespass (which unlike tort of
nuisance does not require any damage to be shown by the plaintiff) committed where a sign attached
to one building projected into airspace above neighbouring building. Giant letters, were affixed to the
higher shop projected into the airspace of the other shop.

Held:

- An injunction was granted to prevent the trespass of the airspace

- Prima facie, the lease of land includes the airspace
- Just because the airspace is not needed, doesn’t mean it doesn’t belong to the leaser
- It can be trespass to use airspace of another (that is why Civil Aviation Acts expressly grant
permission)

Baron Bernstein v Skyviews Ltd [1978] 1 QB 479: Line was drawn in this particular case. Company
had a business, they’d fly over property and offer a nice arial photography of the land for sale. Court
indicated it wasn’t an trespass. Point brought up was that there was legislation s 55 of the Air
Navigation and Transport Act, 1936 (as amended), that indicated licenced aircraft flying over land
does not indicate trespass.

Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2
EGLR 173 (Lexis): crane swinging over neighbouring property. Court said that it was a trespass as it
was going into your airspace. An argument used in ththe Baron Bernstein case was used here however
the judge did disagree indicating:

“In my view, it would be an incorrect use of authority to extract Griffiths J's approach [in Baron
Bernstein v Skyviews Ltd] to the difficult question of overflying aircraft and to seek to apply that
approach to the invasion of air space in general. … His dictum about balancing the owners' rights
against the rights of the general public was not, in my opinion, intended to limit the complaints to
trespass that might in that event be made by neighbours. Mr Moss argued that, in view of the
Bernstein case, the critical question was whether the invasion of air space interfered with the
ordinary use and enjoyment of the land. The owner of the land is entitled to complain of trespass if
the invasion is at a level above the land that does so interfere. Otherwise the invasion should, said
Mr Moss, be rejected as trespass. I am not satisfied that represents a permissible application of
Griffiths J's approach in the Bernstein case nor that it would be workable in practice.

What is complained of in the present case is infringement of air space by a structure positioned upon
a neighbour's land. … The tort of trespass represents an interference with possession or with the right
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to possession. A landowner is entitled, as an attribute of his ownership of the land, to place structures
on his land and thereby to reduce into actual possession the air space above his land. If an adjoining
owner places a structure on his (the adjoining owner's) land that overhangs his neighbour's land, he
thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is
trespass. It does not depend upon any balancing of rights.

The difficulties posed by overflying aircraft or balloons, bullets or missiles seem to me to be wholly
separate from the problem which arises where there is invasion of air space by a structure placed or
standing upon the land of a neighbour. One of the characteristics of the common law of trespass is, or
ought to be, certainty. The extent of proprietary rights enjoyed by landowners ought to be clear. It
may be that, where aircraft or overflying missiles are concerned, certainty cannot be achieved. I do
not wish to dissent at all from Griffiths J's approach to that problem in the Bernstein case. But
certainty is capable of being achieved where invasion of air space by tower cranes, advertising signs
and other structures are concerned. In my judgment, if somebody erects on his own land a structure,
part of which invades the air space above the land of another , the invasion is trespass”

- Essentially, Mr Justice Scott went on to say, was the invasion was different when it was
something attached to neighbouring land.
- He indicated each landowner has a right to put something up on their land however, you
wouldn’t be allowed to put something in that with jut into another land.

Week 8 Lecture 2

Idea of Down to Hell: Subterranean.

You do own minerals beneath the surface, however the state has claimed most of those in Art 10 of
the Constitution and the Mineral Development Act, 1979.

Edwards v Lees Administrators (1936) 96 SW 2d 1028

 An example of owning what’s beneath the land can be seen in the American case of Edwards
v Lees Administrators (1936): Trespass in caves under surface of plaintiff’s land. The great
Onyx cave. Had created a tourist attraction. Though the entrance was beneath one person’s
land the actual cave spanned beneath the property of another. The property law perspective
indicates, that both should’ve received a share of the profits on the basis that the cave was
beneath the property of another landowner as well.

Trinidad Asphalt Co v Ambard [1899] AC 594

 Trinidad Asphalt Co v Ambard [1889] layer of pitch beneath the surface of land. In Trinidad
there is a layer of pitch with which asphalt is made. This was a number of metres below the land.
In this particular dispute, one person had dug a hole at the boundary between two pieces of land,
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exposing the seam on the neighbours land. The hot sun melted the pitch, oozed out onto his land,
resulting in the neighbours land collapsing, this was said to be a trespass.

Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35

 In regards to up to the heavens there is a limitation of sorts, what about in regards to going
down? Note the discussion in the UK Supreme Court in Star Energy Weald Basin Ltd v Bocardo
SA [2010] UKSC 35 – oil pipes 2,800 feet below the surface of plaintiff’s land. Oil belonged to
UK state, they had licensed people to extract the oil, but they were doing so diagonally, removing
from someone else’s land. 2,800 feet. The UK supreme court indicated that you own the area
beneath the land, even if it was 2,800 feet below your land, it was trespass. So essentially the
same level of trespass does not exist.

 
Special rule concerning underground water which is not flowing in any defined channel.

Division of land in the vertical plane

This means dividing up land into slices that are on top of each other rather than side by side (e.g. two
neighbouring farms) as you would normally expect. A good example of this type of division is where one
person owns the ground floor of a building and someone else owns the first floor. This is quite normal in
our law, for example in relation to apartments. For various reasons, it has been unusual for flats or
apartments to be owned as freeholds (with no landlord) and they have tended to be held on leases.

“Flying freeholds”: discussion of the concept in A O’Gorman & Co Ltd v JES Holdings Ltd [2005]
IEHC 168.

Grigsby v Melville [1973] 1 All ER 385 (Lexis): Someone owned semi-detached house, sold one to
another person,. Heard knocking, underneath, original seller and other owner, had a basement underneath.
They argued it belonged to them after they purchased it and not the original owner. Cellar beneath
drawing-room floor. The court ruled in favour of the purchaser. The presumption would be when you sold
land everything would go along with it including everything under it.

Gorst v Knight [2018] EWHC 613

Not quite the same in relation to a lesson its proper construction, lease of ground floor flat did not include
land under the surface, so tenants were unable to extend the cellar downwards.

Lowe (Inspector of Taxes) v JW Ashmore Ltd [1971] 1 Ch 545 (Westlaw.uk): attempt by farmer to
avoid tax by arguing that he had sold the top two inches of his land. This. The court said that you could
divide your land like that however they felt this was not the intention. Wasn’t accepted.

The Creation of New Land

 Accretion: land created by the gradual and imperceptible encroachment of the land upon the
sea (deposition of sand, silt etc). Such newly created land belongs to nearest land-owner. The
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foreshore is the land between the high-water mark and the low-water mark and generally
belongs to the State. Creation of new land will cause the foreshore to recede towards the sea
and the land uncovered will belong to the neighbouring landowner.
 
 The same principles apply to the gradual loss of land through erosion; the loss will be borne
by the contiguous land-owner.
 
 Where land is created suddenly by natural causes or through deliberate reclamation, the land
will belong to the person who owned the land previously covered by the water. In the case of
land created at the sea’s edge, the new owner will be the State unless some contrary
arrangement has been made by statute or otherwise.