Modern-day land law

October 29, 2017 Law

Question

How far does the Latin axiom cuis est solum eius est usque ad coelum et ad inferos ( he who owns the land owns everything making to the celestial spheres and down to the Centre of the Earth ) still represent the contemporary jurisprudence in England and Wales? Discuss this and give appropriate illustrations in instances and legislative acts which support the points you make.

Answer

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Introduction

The construct of land in common jurisprudence was extended by the Latin axiom ‘cuis est solum eius est usque ad coelum et ad inferos’ , i.e. the fee simple proprietor owns everything up to the sky and down to the Centre of the Earth. [ 1 ] Although the axiom has made clear that rights of ownership in land are non simply confined to the surface of the land, the axiom, harmonizing to Lord Wilberforce, was ‘mainly serviceable as distributing with analysis.’ [ 2 ] It is hence ‘sweeping, unscientific and impractical… improbable to appeal to the common jurisprudence mind.’ [ 3 ]

Airspace

The first portion of the axiom relates to the extent of the rights of fee simple proprietors in regard of the air space above the land, even though it will ne’er use in common jurisprudence literally. Griffiths J stated that the rights of the proprietor extend to a ‘height as is necessary for the ordinary usage and enjoyment of his land and the construction upon it.’ [ 4 ] It was, hence, necessary to ‘balance the rights of the proprietor to bask the usage of his land against the rights of the general populace to take advantage of all that scientific discipline now offers in the usage of airspace.’ [ 5 ] In this sense, the rights of the landholder is restricted to such a tallness which is moderately necessary for the ordinary usage and enjoyment of land and, the most important restriction is that, the landholder has no properness rights above that tallness. In other words, the landholder can non hold a better right than the public above the sensible tallness of his land.

This rule besides implies that any invasion of the air space upon the land within that bound may amount to a nuisance or trespass, unless there is consent given by the proprietor. The proprietor can convey an action irrespective of whether he has suffered any harm. [ 6 ] InKelsen v Imperial Tobacco Co. ( ofGreat BritainandIrish republic) Ltd, [ 7 ] an advertizement which was allowed by the suspect to overhang from the claimant’s belongings constituted a trespass. Similar action was besides taken inWoollerton and Wilson Ltd v Richard Costain Ltd[ 8 ] where the jib of a Crane was allowed by the suspect to swing over the claimant’s belongings. However, subdivision 76 ( 1 ) of the Civil Aviation Act 1982 provides that no action shall lie in trespass or nuisance – ‘by ground merely of the flight of aircrafts over any belongings at a tallness above the land which … is reasonable.’

Water

The rights of an proprietor in the H2O on a piece of land are derived from legislative act. Section 24 and 26 of the Water Resources Act 1991 stated that the proprietor has no right to abstract H2O unless the conditions specified in s24 ( 3 ) are satisfied ; for illustration, the proprietor can utilize little measures of H2O for agricultural and domestic intents with a license granted from the Environment Agency.

The rights in regard of H2O fluxing in defined rivers or channels over land is besides preserved in common jurisprudence: the rights and duties of the landholder can be either ‘tidal’ or ‘non-tidal’ in nature. [ 9 ] Although the landholder can non have the H2O itself, he has a considerable right in the bed and the right to angle. Everything depends on the nature of the H2O. If the H2O is tidal, so the Crown owns the bed and the populace will hold a general right to angle to the point where the H2O flows to ‘tides’ or ceases from the wane. In most instances, the boundary point is defined by a river lock gate. If the H2O is non-tidal, so the riparian proprietor owns the bed. Furthermore, where the H2O forms a boundary between two secret plans of land which belongs to different landholders, so both riparian proprietors own up to the midway point in the channel or river every bit, but it is non a definite reply if there is any contrary grounds or understanding. Merely the riparian proprietors are entitled to take fish or any valuable belongings on such state estates. They can besides utilize the H2O in connexion with riparian tenement intents ( in respect to the sum they use ) even though they can non have the H2O itself. However, in the instance of utilizing H2O for ‘extraordinary’ intents ( fabricating ) , riparian proprietors may be apt to reconstruct the same quality and measure of H2O.

Water which is non contained in a defined river or channel ( or percolates underneath the land ) is merely capable of ownership when it is appropriated. [ 10 ] However, if the H2O forms a pool or lake, it will be the belongings of the landholder. In the instance of land which is boarded by a hedge and/or a ditch, there is a rebuttable given that the boundary should be lie at the furthest border of such hedge or ditch. [ 11 ]

Minerals

The 2nd portion of the axiom, covering with ‘the rights of the landholder extend [ ing ] to everything down to the Centre of the earth’ , is by and large applied in common jurisprudence ; for illustration, see subdivision 205 ( 1 ) ( nine ) of the Law of Property Act 1925. This clearly states that mines and minerals in the land were included in the definition of land. However, certain exceeding ownerships were besides reserved for the Crown or other public organic structures by virtuousness of instance jurisprudence and several legislative acts ; for case, unmined gold and Ag belongs to the former. [ 12 ] Oil and natural gas [ 13 ] is besides vested in the Crown, but coal [ 14 ] belongs to the Coal Authority.

Chattels

All movables found on land belong to the landholder if there is no legitimate claim from the chattels’ proprietor. The exclusion to that regulation is that the anterior rights and involvements of ‘treasure’ is vested in the Crown. [ 15 ] Treasure is defined by the Treasure Act 1996. It includes ‘any object of at least 300 old ages old when found which I ) is non a coin but has metallic content of which at least 10 per cent by weight is cherished metal ; two ) when found, is one of at least two coins in the same discovery which are at least 300 old ages old at that clip and have that per centum of cherished metal ; or iii ) when found, is one of at least 10 coins in the same discovery which are at least 300 old ages old at that time.’ [ 16 ] In add-on, it besides includes any object which is at least 200 old ages old with outstanding cultural, historical or archeological importance, designated by the Secretary of State. Section 1 ( vitamin D ) of the 1996 Act besides states that hoarded wealth includes any object which would hold been ‘treasure trove’ if found before the beginning of subdivision 4 thereof.

Flora and Fauna

All trees and workss, whether wild or cultivated, turning on the land is portion of the land. [ 17 ] Wild animate beings and fish belongs to no-one [ 18 ] , but the landholder can go an absolutely proprietor of such species ( by virtuousness of geting a personal right to such belongings ) , if he caught or killed them. [ 19 ] However, a figure of restrictions to that right are set out in the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 in regard of protected species.

Fixtures and Chattels

Section 205 ( 1 ) ( nine ) of the Law of Property Act 1925 includes ‘the surface, edifices or parts of buildings’ and whatever is attached to the dirt becomes portion of the land under another Latin axiom, ‘quicquid plantatur solo, solo cedit’ . In fact, this axiom raises a critical ownership job. Harmonizing to traditional categorization, personal belongings or movables which are attached to set down does non hold legal individuality as an independent movable. It is hence really of import to pull the differentiation between fixtures and movables.

There are two trials for finding whether an object sums to a movable or a fixture. The first trial is ‘the grade of annexation’ . Where the object is annexed to the land, so it becomes a fixture. InNetherlandsV Hodgson[ 20 ] , the spinning looms which had been bolted to the floor of a mill were attached to the floor, but non by their ain weight. Those objects hence became a fixture of the land. However, inHulme V Brigham[ 21 ] , the heavy printing imperativenesss were found to be movables since they had stood on the floor without any fond regard other than the force of gravitation. InChelseaYacht & A ; Boat Co. v Pope[ 22 ] the houseboat was held to be a movable though it had been moored to the bank and had moved up and down with the tide.

The 2nd trial is ‘the intent of annexation’ . [ 23 ] The most important inquiry seems to be whether the movable was attached to the land simply for the better usage and enjoyment of the object as a movable ( in which instance, it is a movable ) or for the intent of the lasting betterment of the land, such as for the intents of concern or trade carried on the land ( in which instance, it will be regarded as a fixture ) . In some instances, the same object may be treated otherwise depending on the peculiar state of affairs. For illustration, inLeigh VTaylor[ 24 ] , tapestries nailed to the wall were held to be movables. However, inRe Whaley[ 25 ],similar objects were treated otherwise, being held as fixtures because the intent of appropriation was to heighten the room for good. Lord Halsbury LC [ 26 ] confirmed that in the context of fixtures or movables differences, the intent of appropriation was the overriding trial while the consideration of the grade of appropriation simply provided grounds of that intent. This was confirmed byHamp V Bygrave[ 27 ] , although, in that instance, the fact that garden decorations rested on the land by their ain weight merely was sufficient for the tribunal to organize the position that they were fixtures ‘forming portion of a landscape display’ .

In the instance ofElitestone Ltd V Morris[ 28 ] , the House of Lords reaffirmed that the primary of import consideration was ‘intention’ . It was said that there should be an scrutiny into the intent of the appropriation ( in aim footings ) , such as whether the object in inquiry is attached for the intent of the usage or enjoyment of the land, or merely for the usage or enjoyment of the object itself. The tribunal clearly tends to use a normal ( or common-sense ) attack to the issue. [ 29 ]

In some exceeding fortunes, an proprietor may hold a right to take a fixture. For illustration, an proprietor may hold a right to take a trade fixture, which has been attached to the land, in order to transport out his trade. Further, if the object is merely a domestic or cosmetic fixture, so an proprietor may be able to take it where no significant harm to the land will ensue ; see for illustration, the process of taking agricultural fixtures set out in the Agricultural Holdings Act 1986.

Decision

It is apparent from the predating analysis that the Latin axiom ‘cuis est solum eius est usque ad coelum et ad inferos’ has survived, and does stand for, to a big grade, a cardinal rule of contemporary land jurisprudence. It is besides clear, nevertheless, that the axiom has been affected by several restrictions by manner of case-law and legislative act. Whilst the axiom has provided for a ‘general principle’ to be applied in land differences, the jurisprudence now is much clearer and complete. It is now possible to obtain a better apprehension of the axiom, peculiarly if it is broken down into its component parts. From at that place, the contemporary land attorney will be able to decode how to use the axiom to the fortunes of any peculiar instance.

( 2,413 words )

Bibliography

Text

  • A Clarke and P KohlerProperty Law Commentary and Materials( 2005 ) Cambridge University Press ( Cambridge )
  • A J OakleyMegarry’s Manual of the Law of Real Property( 2002 ) Street & A ; Maxwell ( London )
  • K Gray & A ; S GrayLand Law( 2007 ) Core Text Series ( Oxford )
  • N P GravellsLandLaw: Text and Materials( 1999 ) Street & A ; Maxwell ( London )
  • Roentgen SmithProperty Law( 2008 ) Longman

Articles

  • Tocopherol Behrens and M Dore Rights of Landownersto Leaching Groundwater inTexas( 1991 )32South Texas Law Review 185
  • E McKendrick Trespass to Air Space and Property Development ( 1988 ) NLJ
  • H Thomson and P MatthewsWhat is a fixture?( 1999 ) Vol 15 No 5 IL & A ; P 168
  • K GrayProperty in Thin Air( 1991 ) 50 CLJ 252
  • M HaleyThe jurisprudence of fixtures: an unprincipled metabolism( 1998 ) Conv 137
  • P LutherFixtures and Chattels: A Question of More or Less…( 2004 ) OJLS

Cases

  • Alan Wibberley Building Ltd V Insley[ 1999 ] 2 All ER 897
  • Attorney-General V Morgan[ 1891 ] 1 Ch 432
  • Ballard V Tomlinson( 1885 ) 29 Ch 115
  • Bernstein 5 Skyviews and General Ltd[ 1978 ] QB 479
  • Blades V Higgs( 1865 ) 11 HLC 621
  • Botham v TSB Bank plc( 1997 ) 73 P & A ; CR 1
  • Case of Mines( 1567 ) 1 Plowd 310
  • Chelsea Yacht & A ; Boat Co. v Pope[ 2000 ] 1 WLR 1941
  • Commissioner for Railways v Valuer-General[ 1974 ] AC 328
  • Elitestone Ltd V Morris[ 1997 ] 1 WLR 687
  • Hamp V Bygrave( 1982 ) 266 EG 720
  • Holland V Hodgson[ 1872 ] LR 7 CP 328
  • Home Brewery Co. Ltd v William Davis & A ; Co (Leicester) Ltd[ 1987 ] 1 QB 339
  • Hulme V Brigham[ 1943 ] KB 152
  • John Trenberth Ltd v National Westminster Bank Ltd( 1979 ) 39 P & A ; CR 104
  • Kelsen v Imperial Tobacco Co. ( ofGreat BritainandIrish republic) Ltd[ 1957 ] 2 QB 334
  • Leigh V Taylor[ 1902 ] AC 157
  • Mitchell v Mosley[ 1914 ] 1 Ch 438
  • Nicholls v Ely Beet Sugar Factory Ltd[ 1936 ] Ch 343
  • Re Whaley[ 1908 ] 1 Ch 615
  • Stukeley VButler( 1615 ) Hob 168
  • The Case of Swans( 1592 ) 7 Co Rep 156
  • Vowles v Miller( 1810 ) 3 Taunt 137
  • Woollerton and Wilson Ltd v Richard Costain Ltd[ 1970 ] 1 WLR 411

Legislation

  • Agricultural Holdings Act 1986
  • Coal Industry Act 1994
  • Law of Property Act 1925
  • Petroleum ( Production ) Act 1934
  • Protection of Badgers Act 1992
  • Treasure Act 1996
  • Wildlife and Countryside Act 1981

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