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Rights Above and Below the Surface of Land

 

Historically it was considered that the land owner owned everything above and below the surface of the land. Cuius est solum eius est usque ad coelum et ad inferos was said to apply - meaning whoever owns the soil owns everything up to the heavens and down to the depths of the earth. This, however, is no longer strictly the case and there is no absolute right in respect of the airspace above the land and things below the surface of the land.
 
 
Rights above the land
 
A landowner owns the airspace above his land and may bring an action for trespass against an intruder or where another places an object which projects into their airspace:
 
 
Kelsen v Imperial Tobacco [1957] 2 QB 334   Case summary
 
 
Gifford v Dent (1926) 71 SJ 83    Case summary
 
 
Wandsworth Board of Works v United Telephone Co (1884) 13 QBD 904
 
 
Anchor Brewhouse Developments v Berkley House Ltd [1987] EGLR 172   Case summary
 
 
However, this right is not unlimited:
 
 
Pickering v Rudd (1815) 4 Camp 216     Case summary
 
 
 
 
The right to airspace above land is restricted to such a height as is reasonably necessary for the ordinary use and enjoyment of his land and the structure upon it:
 
 
 
 
Rights below the surface of the land
 
 
Right to spaces below the surface
 
Man made and natural spaces below land are capable of ownership. The space belongs to the owner of the surface of the land even if it was created by another and the landowner has no access:
 
Grigsby v Melville [1974] 1 WLR 80   Case summary
 
Ownership also brings obligations:
 
Metropolitan Railway v Fowler [1892] 1 QB 165
 
 
Rights to minerals in the land
 
The owner is generally entitled to the minerals within the land but this is subject to the rights of the Crown in relation to oil, coal, natural gas, gold and silver.
 
Rights to items found in the land
 
 
Items found below the surface of the land belong to the landowner:
 
 
Elwes v Brigg Gas Company (1886) 33 Ch D 562  Case summary
 
 
Waverley Borough Council v Fletcher [1995] 4 All ER 756   Case summary
 
Unless they are items of treasure trove under the Treasure Act 1996
 
 
Whereas with regards to items found on the surface of the land, which are not treasure trove and the owner can not be found, the finder has a better title than the land owner:
 
 
Bridges v Hawkesworth (1851) 21 LJ QB 75   Case summary
 
Hannah v Peel (1945) 1 KB 509    Case summary 
 
 
 
Parker v British Airways Board [1982] QB 1004    Case summary
 
 
 
Unless the land owner exercises sufficient control and the finder is a trespasser:
 
 
 
Hibbert v McKiernan [1948] 2 KB 142   Case summary
 
 
 

Rights Above and Below the Surface of Land