Property Law
Rights above and below land
The concept of “land” only extends upwards to a height necessary for the ordinary use and enjoyment of the surface (Bernstein v Skyviews & General Ltd [1978])Trespass above land at lower levels: “not whether the incursion actually interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake” (LJP Investments v Howard Chia Investments (1989).
Concept of Land
•The common law meaning of the land is any area, of three dimensional space, with its position identified by natural or imaginary points located by reference to the earth’s surface: Ball, “The Jural Nature of Land” (1928) 23 ill LR 45
•It may be wholly above it or below it. The space may have physical contents or may be a void. …But the land is more than those fixed contents, because if the contents of the space are physical severed, destroyed or consumed, that space itself-and so the land remains: BUTT [202] Re Trizec Manitoba Ltd (1986) 25 DLR
•A statue may define land…examples being §21(1) of the interpretation act 1987, §3 or the RPA or §7 of the Convey Act. BUTT [202]
•Whether the statue definition corresponds with the common law concept is a matter of constructing the statue: City Mutual Life Assurance Society Ltd v Smith (1932) 48CLR 532
•Where a statue uses the word ‘land’ without further definition, it is a matter of construction of the statue whether the common law meaning of the word is intended: Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199
RIGHTS ABOVE AND BELOW THE SURFACE
THE “CUIUS EST SOLUM” MAXIM
•The laws governing the rights of land above and below are traditionally explained in the maxim, “Cuius Est Solum eius usque ad coelum et inferos” which means – the person who owns the land owns it from the heaven above to the centre of the earth below.
•The starting point should
The concept of “land” only extends upwards to a height necessary for the ordinary use and enjoyment of the surface (Bernstein v Skyviews & General Ltd [1978])Trespass above land at lower levels: “not whether the incursion actually interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake” (LJP Investments v Howard Chia Investments (1989).
Concept of Land
•The common law meaning of the land is any area, of three dimensional space, with its position identified by natural or imaginary points located by reference to the earth’s surface: Ball, “The Jural Nature of Land” (1928) 23 ill LR 45
•It may be wholly above it or below it. The space may have physical contents or may be a void. …But the land is more than those fixed contents, because if the contents of the space are physical severed, destroyed or consumed, that space itself-and so the land remains: BUTT [202] Re Trizec Manitoba Ltd (1986) 25 DLR
•A statue may define land…examples being §21(1) of the interpretation act 1987, §3 or the RPA or §7 of the Convey Act. BUTT [202]
•Whether the statue definition corresponds with the common law concept is a matter of constructing the statue: City Mutual Life Assurance Society Ltd v Smith (1932) 48CLR 532
•Where a statue uses the word ‘land’ without further definition, it is a matter of construction of the statue whether the common law meaning of the word is intended: Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199
RIGHTS ABOVE AND BELOW THE SURFACE
THE “CUIUS EST SOLUM” MAXIM
•The laws governing the rights of land above and below are traditionally explained in the maxim, “Cuius Est Solum eius usque ad coelum et inferos” which means – the person who owns the land owns it from the heaven above to the centre of the earth below.
•The starting point should