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

Commissioner for Railways v Valuer-General [1974] AC 328    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:

Bernstein  v Skyviews and General Ltd [1978] QB 479      Case summary

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