Basic Formula of a Coelo Usque Ad Centrum - Coursework Example

There are two Latin maxims which define land. First, ‘Cujus est solium ejus est usque ad coelum et ad inferos’, which means that land extends indefinitely upwards to the zenith and indefinitely downwards to the centre of the earth. Over the past there have been a number of scientific advancements, but even with the development t of modern day technology mankind has been unable to access the resources of the earth beyond the crust and mantle border. Most of the geologists have tried to gain access to the resources beyond this border but have failed to do so due to the restrains of modern day technology, where the drilling technology has failed to access these parts1. In practice however, the ownership of land is restricted to those parts of the land column and the substratum that the owner can reasonably utilize and control. A commentary on this maxim is contained in the judgment of the Privy Council delivered by Lord Wilberforce2- “The earliest recognition appears to be recorded in Bury v Pope3 (1588) where reference is made to its use temp Ed1 in the form ‘Cujus est solium ejus est usque ad coelum’ but the context of the statement in the reign if Edward 1 has not been identified. Blackstone then described land as “land hath also, in its legal signification an indefinite extent upward as well as downward-the idea therefore is that no man erect any building or the like to overhang another’s land…so that the word ‘land’ is not only the face of the earth, but also everything over and under it” The Law of Property Act has clearly defined what all are inclusive under the heading of Land. Under this law it has been clearly stated that ‘Land’ is inclusive of terrain be it of any texture and quality, and it is also inclusive of the minerals and the resources that may be found there be it over the ground or be buried underneath it. Therefore it is also inclusive of the mines that may be found in the place. Thus land is inclusive of the surface of the ground and the minerals as well as the resources that it may hold such as buildings, shed ( be it horizontal or vertical in construction) In the law it is clearly stated that “other corporeal hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land”, where mines and minerals are inclusive of all resources that may be found on the surface or below the terrain of the region under discussion, manor is is inclusive of the lordship of the place that may be constructed on the land. It is difficult to figure out the fact that there are a number of examples of its use in judgments of the 19th century, which time mineral values had drawn attention to downwards extent as well as, or more than extent upwards. But its use, whether with reference to mineral rights, or trespass in the airspace by projections, animals or wires, is imprecise and it is mainly serviceable as dispensing with analysis4. In none of these cases is there an authoritative pronouncement that land means the whole of the space from the centre of the earth to the heavens: so sweeping, unscientific and unpractical a doctrine is unlikely to appeal to the common law mind. Usually the maxim is used when one is trying to make a statement, even if it is an imprecise one, about the rights of the owners of the land that is under scrutiny5. In Corbett v Hill6, the plaintiff, was the owner of two contiguous houses in the city of London7. He sold one to the defendants by a conveyance which correctly marked out the ground site of the house conveyed8. One of the first floor rooms in the house retained by the plaintiff projected over the site and was supported by the other house. Plaintiff’s bill to enjoin defendant from building over plaintiff’s projecting room was dismissed by Sir W M James, V C, who said that, “The rule of law that is under practice today is that when one is the owner of a piece of land, that is, whoever holds the solum, owns all the sections of the land, per the situation. The servers in the cloud can be considered to be physical machines or even be it the space above the land extending to the sky or the area that is buried below the surface of the terrain. But that ordinary presumption of law, no doubt, is frequently rebutted, particularly with regard to property in towns, by the fact that other adjoining tenements, wither from there having once been a jointly ownership, or from other circumstances, protrude themselves over the site. The question then arises whether the protrusion is a diminution of so much of the freehold including the right upwards and downwards, as is defined horizontally by a section of the protrusion; or whether such a portion only is carved out of the freehold as is included between the ceiling of the room at the top and the floor at the bottom…subject to the exception which has been obtained or made reason of the protrusion, the (defendants) still remain the owners of everything else, including the column of air above the room upon which the supposed trespass which has been made.”9 The maxim as put forward in this case was sought to be invoked in Bernstein v Skyways & General Ltd 10 where the owner of a country estate brought an action against the pilot of an airplane, who took aerial photographs of the house on the estate and offered to sell them to the owner. Damages were sought for alleged tresspass for entering the airspace above the property, and invasion of the owner’s right to privacy. Where theory is concerned, there has been a general trend to launch scathing attacks on the general drive of the doctrine, given especially the fact that allocating complete usage of subaltern and airspace within the perimeter of the house to the one using the land seems a bit extreme. The sole entitlement south of the land’s border has been particularly criticized, many have termed the phase 'fanciful11. to be sure the process of the manner in which the doctrine has been arrived upon and implemented seems to have been toned down to a large extent both in England and in Wales. This could probably be attributed, to a large extent to a fact that it has seldom been the case in English common law that ownership or the lack of it has been the determining factor in the case of a dispute, along with determining whether or not a remedy would in fact be arrived at in a given case. The focus is on whether there has been any infringement on the rights of the owner of the land, and this right will only be known to exist if there is recognized contract sustaining it, and if this is not the case then the right does not exist (and not the vice versa). The problem with the existing common law principles is that there is the absence of any of special remedies that find basis in terms of ownership. By way of argument, the fact that in most cases that relate to the law in controversy the idea has been that there is a problem related to trespassing or intrusion into airspace in some form or manner by a landowner who is either a neighbor or has an adjacent facility. Here one finds that the cases are the cross bearers of the principle of by way of the limited practicability of the cujus est solum brocard in England and Wales. It would, in fact appear that in accordance with the principles as laid out by the respective authorities that there is a kind of damage or injury which needs in essence to be proven prior to an action for injury in the form of trespassing into airspace has to be upheld. This has meant that there is an overall doubt about the nature and extent to which ownership could be held in a vertical limit up to the heavens. Where one is come up with considerations about the use of land and airspace in the context of possession of land, one finds that the present corpus of case law is largely inadequate and contradictory. It is not consistent with one could however, despite these inconsistencies argue that the situation at present under English law could be summed up by Griffiths J in a statement where he argued: The focus today has to be on the diliema that is being faced which is that there has to be established a balance between the rights of the owner of the ,land and the interest of the general public so that the land can be utlised to the maximum without violating any rights through the optimal use of scientific technology. It is my belief that the best method that can be adopted to strike a balance between these two contradictory dilemma is to today restrict the rights of the owners to a certain extent, where his or her rights over the aerospace above his land be restricted to a height which is necessary for him to enjoy his land owner rights, which is inclusive of the heights of any structures that he or she might construct, where as all the other aero space above the land be declared public and that the rights of the owner are no greater in these paces than the rest of the public. The Bernstein decision was applied again by Thomas J in Schleter v Brazakka Pty Ltd12 in which one of the issues was whether the flight of an aircraft at a height of at least 600 feet above the surface of land constituted a trespass. In holding that it did not, his Honor examined the nature of the land above which the plane flew, being a large outback station held under a pastoral lease. His Honor held at [27] that the rights of a pastoralist extended upwards ‘only so far as necessary for pastoral purposes’. Thus, in the end it was established and declared that there had been no trespassing on the land. However, it is relevant to note the fact that Thomas J did not hold that the interference with the upper airspace is never actionable. Lower strata of the air space belong however to the owner of the land. In Woolerton and Wilson Ltd v. Richard Costain Ltd13 the case was one where the defendants were building contractors. The height at which the crane that was being used was hanging over the land was about 50 ft above the terrain. The ones defending their cause made an admission in the court to the tune of the fact that they were guilty of trespassing the airspace that belonged to the claimant. They however, agreed to pay compensation for this14. The claimant on the other hand would not accept the compensation and demanded that the court provide an interim injunction that would prevent the trespass. Stamp J said in relation to this that although under normal circumstances there should have been an injunction, but given the various facts of the case that is being discussed this should only be carried out once the defendants have a chance of completing the work. Again, in a recent judgment, of Laiquat v. Majid15 one finds a first of its kind judgment wherein it was decided that there is the presence of an extractor fan at about 4.5 m over the terrain surface, and it obtruded out by about 750 mm into the garden of the claimant. The judge, Silber J, made his decision by relying on the an older instances such as Kelsen v. Imperial Tobacco Co. Ltd16, and here it was established that the case was a case of trespass where there was trespassing of into the aero space of the claimants garden region due to the fact that the question was that of trespassing of the claimants aerospace in accordance to the standards that were established by the authority and thus the fan was considered a trespassing act even though it did not interfere with the claimants working of the garden. English law recognizes that the land to which a landowner is entitled includes at least some quantum of the underlying soil or void encapsulated within the two dimensional coordinates on his surface boundaries. The keen gardener is doing no more than explore the third explore the third dimension of his estate; the homeowner may install a swimming pool in his or her own backyard-the idea however is that the owner would need to be cautious of the neighbor who would build hard up on a mutual boundary, for his foundations may well trespass into the subsoil on the wrong side of that boundary17. The question of rights below the surface was discussed by Young CJ in Eq in Di Napoli v New Beach Apartments Pty Ltd18. In that case, the question arose as to whether a landowner could require the adjoining owner to remove lock anchors placed below the surface in the owner’s land. It was argued that the rock anchors were below the useable subterranean space and that their location was too distant, or at depth too great to interfere with the owner’s ordinary use and enjoyment of the land., in rejecting this argument, His Honor cited a number of Kentucky decisions, in which it was held that trespass was committed by passing through caves some 360 feet below the surface of the land, and held that the rock anchors were not so far below so that they could go beyond the scope of trespass. The second maxim is Quicquid plantatur solo, solo credit, which means that whatever is attached to the land is part of it19. This is therefore automatically applicable to things that are growing on that land such as trees crops grasses and the like and things fixed to the land such as buildings and structures. Land is also defined in a number of statutes such as Interpretations Act (1901) (Cth) s22 which provides that ‘land’ shall include messages tenements and hereditaments corporeal and incorporeal-of any tenure or description and whatever may be the estate or the interest therein20. All minerals, including royal metals are part of the land and title in them is invested in the owner of the land for the time being, unless specifically excluded by the Crown Grant Certificate of Title or statute. Isaacs J said at 38: “Land includes in its mass everything from the surface downwards. It requires some rule of law either to include something not actually part of it or to exclude something that is a natural part of it”. It follows from the discussion that any lateral invasion of lower stratum airspace-however trivial-is prima facie actionable in trespass (and possibly in nuisance). Frequent causes of wrongful intrusion include the over changing branches of a neighbor’s tree, his ever so slightly bulging flank wall and his projecting caves or advertising signs. Of such stuff is the endless saga of neighboring disputes. In conclusion therefore one could state that the basic idea governing land possession rights is the basic formula of a coelo usque ad centrum. The phrase describing the vertical extent of the owner’s right in land, so that it encompasses the different strata of subterranean space, the earth’s surface, and airspace21. It is inclusive of the fact that it is the right of the proprietor to use the property as he may think fit and to prevent any other person encroaching thereon, whether above or below the surface (Corbett v Hill [1870]). However, as is evident from the above argument it is also established that the landowner does not have unlimited rights in the airspace (Bernstein v Skyviews [1978]). In addition, some minerals below the surface are vested in the Crown by common law (gold and silver) and some by statute (e.g. oil and gas). References References Sprankling, J. G., (2008). Owning the center of the earth. UCLA Law Review. pp979-1039. Commissioner for Railways v Valuer-General (1973) 26 LGRA 1 at 11 1588 Cro Eliz 118 74 ER Pickering v Russ (1815) 4 Camp 219; Ellis v Loftus Iron Co (1874) LR 10 CP 10 Gray, K. J., Gray, K., and Gray, S. F., (2007). Land law. Oxford University Press. Pp7-9 Corbett v Hill (1870) LR 9 EQ 671 Gray K. J., and Gray, S. F., (2006). Elements of Land Law. Oxford University Press. Chp1. Harvard Business Essays. (1977). ‘Harvard Legal Essays, Written in Honor of and Presented to John Henry Beale and Samuel Williston’. Ayer Company Publishers, Incorporated. P533 See also 29 Harv. Law Review. 525 [1978] QB 479 Mattei, U., (2000). Basic Principles of Property Law: A Comparative Legal and Economic Introduction. Oxford Books. p77 2002 12 NTLR 76 [1970] 1 WLR 411 What is Land. Retrieved November 21, 2010, < http://www.oup.com/uk/orc/bin/9780199216413/clarke&greer_ch01.pdf> [2005] EWHC 1305 [1957] 2 QB 334 ER Ives Investment Ltd v High (1967) 2004 NSWSC 52. Ibid Hyam A A., (2009). The Law Affecting Valuation of Land in Australia. Federation Press. Pp3-5 Martin, E. A., and Law, J., (2006). A Dictionary of Law. The Federation Press. Pp11-13 Read More