Most countries have their own definition of land and what is included in their ownership rights. The Cuius est solum eius est usque ad caelum ad inferos maxim has been around since the 13th century and simply means he who owns the surface owns everything up to the heavens and down to the depths of the earth. The Commonwealth Caribbean does still legally recognize the maxim, countries such as Barbados, Trinidad and Tobago, Jamaica, Belize; and a few others; however, there are other countries within the common wealth where there are limitations of the maxim. In the case of MITCHELL v. MOSLEY , it was said that “The grant of the land includes the surface and all that is supra – houses, trees, and the like – cujus est solum ejus est usque ad caelum – and all that is infra, i.e., mines, earth, clay, etc. This was later agreed by Bocardo Sa ; however, the issue arises of whether the maxim is a true statement? The maxim is true to an extent since it is still used in within the parts of the commonwealth Caribbean however; statute and cases has changed for some countries and causing the maxim to be limited. The maxim can be traced back to medieval times but is diminishing under the modern law in the case of Bocardo sa v star energy wield basin. This essay will demonstrate that the maxim is true in some jurisdictions in the commonwealth by mentioning countries where the maxim is still valid and in use but there are limitations in others by statute, and case law that causes it to be diminishing in some countries.
From a Historical point of view, due to historical content of Caribbean jurisdiction by legislation, some countries took the rights out of the hands of the owner. In modern day, the space above the earth of land is most likely limited. Up the heavens may not be a suitable statement anymore since the day and age as changed. The crown (government) also has certain rights and entitlements in respect to land. Referring to modern law, the maxim has become diminished due to some statutes also the maxim has aged and does not have the same effect or relevancy as it did in the past for some places due to the social and political changes that have taken place. Everything has changed as time goes on and the world has expanded their horizons. The world has become more advanced, and more populated with other social and environmental changes as well. Maxim is true for some places in the commonwealth but with limitations. ’205-(xi) of the Law of Property Act 1925 Uk, includes “land of any tenure, and mines and minerals, whether or not held apart from the surface….” “Mines and minerals are therefore presumed to be included within the ownership of land-owner can claim everything that is below the surface, However, the presumption of ownership of minerals can be rebutted by mineral severance – where title to the minerals, or rights to obtain minerals, have become vested in someone else. There are various cases where mines and minerals may not be fully included within the ownership of land.” According to Title and covenant brokers, In this case, the rights to obtain minerals that are vested in someone else is usually the government or the crown. The government (crown) are normally who claims ownership other than the owner that has some interest of whatever is found on the supposedly owner’s land and it becomes legal sometimes through legislation. The government would have the right to go on someone else land and confiscate what is found below the ground once legislation is enforced. Some jurisdictions, the owner of a land would have an interest or estate of land; however, that does not mean that they have full ownership but an interest while the government still holds the greatest interest or estate. This also leads back to the medieval ages where at the time, William the Conqueror vested land in himself and used his power to grant and re-grant lands to persons in his favor. He originally had power and ownership of land. The king at the time named interest as having an estate.
Below will be further demonstration of the truth of the maxim. Belize’s law of property act also supports the maxim and shows that the maxim is still in use in some areas of the commonwealth. Belize still has the historical interpretation of the maxim intact where the government (the crown) owns anything below the surface such as oil, minerals, gold, silver etc. In Belize, generally, land law matters are governed by the Law of Property Act, Chapter 190. The definition relating to land states that “land” includes land of any tenure, mines, and minerals , whether or not held apart from the surface, buildings or parts of buildings ( whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments, and easement, right, privilege or benefit in or over or derived from land, but not an undivided share in land. The Registered Land Act, Chapter 194 at Section 2 defines land as follows: “ land” includes land covered with water, all things growing on land and buildings and other things permanently affixed to land. There is a Latin maxim which when translated means “the rights of the surface owner extend upwards to the heavens and downward towards the center of the earth”. Another Country within the commonwealth Caribbean that recognizes the maxim and still has it intact as well is Barbados. Barbados and Trinidad as well defines land to include legal estates whether or not they give right to possession of soil. Section 2, Property Act (Barbados) defines land as “the surface of the earth, the space above it and the things below it, and includes houses and other structures whatsoever.” “land” means the surface of the earth, the space above it and the things below it, and includes (a) houses and other structures, and parts of structures (whether the division is horizontal, vertical or made in any other way); (b) mines and minerals, whether or not held apart from the surface;” The act does not only define the land, it mentions what it includes and it mentions whether or not is it held apart from the surface, it is still a part of the land. Section 2 basically recognises the maxim and by restating it, it shows that Barbados is one of the countries that’s are still in support of the maxim as well as Jamaica and Trinidad. Another country that recognizes the maxim and has the existence causing it to maybe be true is in Trinidad and Tobago. In Laws of Trinidad and Tobago Conveyancing and Law of Property chap.5601 states that “land” includes land of any tenure, houses and other buildings, mines and minerals, and other corporeal hereditaments; also a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land, and also an undivided share in land; and in this definition “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and winning the same; and “hereditaments” mean real prop. The definition of land is very similar to Barbados and is in support of the existence of the maxim. It shows that Trinidad is one of the countries where the maxim has not been diminished by legislation or cases yet. It is still very much alive as it is in Barbados and Jamaica and a few other places within the Commonwealth. The Trinidad and Tobago act includes structures as well as mines and minerals as part of the land. A case that supports the maxim of the definition of grant of land is In The Mines Case (1567) The Earl of Northumberland challenge the crown stating that they the crown had no right to all Gold, silver or precious metals found on the owners land. The held was that it was a prerogative power to own the gold and silver and that it automatically belonged to the crown. Here once again the rights of the owner were taken away and vested in the crown despite that the discovery was on the owner’s land.
Below limitations of the maxim will be examined. As said by J. Paul Getty “The meek shall inherit the earth – but not the mineral rights” What makes that quote interesting is that the first half is a biblical reference and the other part happens to show the extent of the truth of the maxim in certain countries within the commonwealth, “but not the minerals which is considered a limitation of the maxim. There have been a few statutes that supports the diminishing of the maxim such as Guyana. Guyana is a part of the commonwealth however, they originate from a system of the Roman-Dutch; so, they have a hybrid system and are governed by the civil law. Section 4(2) of the Civil law of Guyana Act states, “Gold, silver, precious stones, valuable minerals, as defined by the Mining Act, mineral oil, asphalt, coal, bauxite, and all other mineral substances found upon the lands shall be deemed to be vested in the State, and no one shall explore, prospect, mine for, remove, or appropriate any of those minerals except in accordance with the Mining Act.” This section clearly goes against the proposition that you own everything under your land and that the crown will have full possession. Jamaica has a section in their Jamaica Minerals Act that shows the maxim is diminishing due to legislation. The Jamaica Minerals Act S.2 also supported the diminishing of the maxim by stating in this Act- “Crown Land” includes all land vested in the Commissioner of Lands under the Crown Property westing) Act while section 4 states “No person shall mine any minerals save in accordance control of mining and with the law and regulations governing mines and mining and there shall be paid to the Government such royalties as may be thereby prescribed in respect of minerals mined.” Again, the thought of a person owning anything below the ground is undermined by legislation and the government has the control and are entitled to any findings or earning from the land. Section 2(3) of the Jamaica Minerals Act continues “It is hereby declared that all minerals being in, on, or under any land or water, whether territorial waters, river, or inland sea, are vested in and are subject to the control of the Crown.” Once again, in the Jamaica Minerals act the crown has control over everything below the ground.The law has moved on beyond the landowner owning everything above and below the ground (e.g. Grisby/Melville (1974) This case is about the ownership of a cellar beneath the plaintiff’s land, that is only accessible through the neighbour’s property. The court held that the cellar belonged to the claimant and the defendant being the tenant had to pay rent if he wished to use the cellar and in Waverly BC/Fletcher (1995) held that the conveyance carries with it everything that is beneath the ground) but the rule is subject to the rights of the Crown. Another limitation is where airspace rights are concerned where the owner of land owns the space above the surface and is entitled to recover damages for trespass into the air space above his land. In the case of In Kelsen v Imperial Tobacco, Where the defendant owned a tobacco store and leased a section of the place to the plaintiff. There was a sign in the claimant’s airspace that was protruding out and an injunctive relief was granted to have the defendant remove a sign which was in the airspace above the shop. Relief was granted. It was still an interference despite being a few inches into the airspace which leads to our next case of Laiqat v Majid (2005) This case had amounted to a trespass despite whether it was even a small interference with a landowner’s airspace. An extractor fan was hanging over and at first it was not found to be an interference however, it was found to be an interference upon appeal. As mentioned in the case by Griffith J “The problem is to balance the rights of an owner to enjoy the use of his land vs the rights of the general public to take advantage of all that sciences now offers in the use of airspace”. Unlike like the case of Lord Berstein of Leigh v. Skyviews & General Ltd.1978. The principle taken from Lord Berstein of Leigh v. Skyviews & General Ltd. (1978) was that the landowner owns as much of the airspace as is necessary for the ordinary use and enjoyment of the land. The held was that there was no trespass where the defendant had flown an aircraft over the claimant’s land and taken aerial photographs of the claimant’s house. The upper airspace space was taken into consideration as he was flying hundreds of feet above. This case demonstrates that there is a limitation or airspace. As long as it is not interfering with the landowner’s ordinary use and enjoyment of the land. Humans do not actually own from the heavens ’there is a reasonable space that persons own which in this case, as long as an aircraft keeps the reasonable distance that does not interfere with the enjoyment of the landowner, it should be ok. Another piece of support comes from the Barbados Civil Aviation Act, 2004 (Cap. 288B) Section 25. (1) states that No action shall lie in respect of trespass or nuisance by reason only of the flight of aircraft over any property at a height above the ground that, having regard to wind, weather and all the circumstances of the case, is reasonable or the ordinary incidence the flight of aircraft so long as there is compliance with this Act. Everything is depending on the how high up from the land, and airplanes are excused as long as it’s a height above the ground that is sufficient for the aircraft to fly along with complying with the act. Section 40 of the UK Civil Aviation Act, 1949 states the same as section 25 of the Barbados Civil Aviation Act. An airline can invade airspace cause it to constitute as a trespass but once it’s for the actual use of doing just that, that it is supposed to do which is flying over as an aircraft, then it should be fine since the use is legitimate.
Some persons may oppose of the idea that the maxim is true since time surely have changed since the medieval times. There is no dispute that the world have changed in many ways such as in customs and traditions, laws, political affairs, socially, and technology wise; however the limitations do not cause the entire maxim to be false…just diminishing in some places. Especially in the commonwealth, common law still plays a great deal and most commonwealth countries still go by it without changing much, if anything at all. Everything some countries do still fall under the precedent of the past and most things from common law are kept and untouched. Laws and cases of the past are still relevant in present day. The maxim is very hard to deny and say it is not true because it still exists and is in full effect in some countries still. Can a person look at the maxim or the definition of land in their act and deny the truth of the maxim and even if it so happens that the maxim isn’t exactly so, then the limitations should be explored because the maxim isn’t entirely untrue.
Common law from the past until now have certainly changed; there’s no dispute. Do these changes however, affect the maxim that an owner of land can own everything from the upper sky/heavens to the bottom depths of the earth? The reality is that in some jurisdictions it just so happens to be true and others have limitations. The maxim has not fully been diminished. The maxim is still valid as shown throughout the essay but has its fair amount of limitations having the maxim become true to an extent