Land Law Assignment
Introduction
Maxim
It would be indisputable ownership of the surface of land gathers rights along with to what is below the surface also in commanding of airspace above, In the past its stated that cuius est solum, eius est usque ad coelom et ad inferos (“whoever owns the sod owns everything up to the heavens and down to the depths of the earth “). Even though its shown to be constructive due to effectively no likelihood of misuse of the airspace above land, the concept has been significantly adjusted after the evolution of flight in striking a reasonable stability with rights of the surface owner also rights to overflight of land.
Corporeal hereditaments
Hereditaments are entitlements that Till the reform of succession law from the massive legislative adjustments in 1925 proceeded from the death of the present owner under the laws of inheritance on those regulations, the specified property was inherited from the first born male descendant direct line of blood, except for having shared with the entire of the closest family this is close to governing succession of the crown on passing away of British King or Queen. Even though it has been a long time when the laws of inheritance disappeared however the idea of hereditaments has been maintained. Hereditaments were regarded in being corporeal if they were physical in existence. Clearly it involves the physical attributes of land consisting the surface itself also anything which is connected to the land including permanent buildings also any plants or trees growing on the land. it involves mines and minerals (that can be owned individually from the surface: the channel tunnel, where it goes from English territorial limits, owned individually from the surface, also composed a corporal hereditament).
Incorporeal hereditaments
Distinctively from corporal hereditaments the incorporeal hereditaments are permissions that are under the old law of inheritance would go through to the heir however didn’t have any direct physical identity, therefore right of way across a person’s land for getting through to your land, this right to take water from a spring of someone else’s land in repairing your house, or farming would be regarded as incorporeal hereditaments. these are proprietary rights in land that are known to categorized as “land”, thus controlled from the regulations relevant to the land instead of personal property, majority of those rights are identified as incorporeal hereditaments that have interest from neighbouring land, however few examples including rights of the fish the river, perpetual rentcharge that could be satisfied independently of ownership of any neighbouring land.
Rights to Airspace
Owner of the physical surface owns the airspace above the land, also is permitted to prevent anyone to trespass into it. in the case of Kelsen v Imperial Tobacco , the owner of the surface of land was permitted an injunction prohibit a trespass from the neighbouring landowner that has erected a sign which has come into the airspace above his land by some 4in . relatively in Anchor Brewhouse Developments Ltd v Berkley House Ltd where a developer granted the jib of a tower crane for swinging on the plaintiff’s property. Scott J permitted an injunction to avoid trespass (Woolerton v Costain) in which an injunction was blocked from Stamp J in the relative case however this verdict was criticized in Charrington v Simons Ltd And John Trenberth Ltd v National Westminster Bank , In these circumstance an injunction is obtainable also when the infringement leads to no destruction to the land itself ,due to trespass being actionable as in , Laiqat v Majid Silber J had stated an extractor fan that projected over the claimants land from about 750,, also a height of 4.5m which forms a trespass but due to complaint hadn’t been made for the fan for a long time prior to the present dispute arising , therefore Silber J referred to the county court for the question in either destruction could be a more relevant solution rather than an injunction .in the case that profits where formed from usage of airspace ,as with a trespassing advertising hoarding , the relevant weight of compensation for past infringement would usually be damages constructed on a hypothetical licence fee.
Limitations of the owner to rights of the airspace
Even though there doesn’t need to be any disturbance with usual activities however its stated that the owner of the surface doesn’t enjoy rights with the superjacent airspace and the unlimited height. In the case of Bernstein v Skyviews and General Ltd where landowner declared that there was a trespass when a light aircraft went through his land and capture an aerial photograph at the height of 700 hundred feet. The landowner had depended on Maxim Cuius est solum eius est usque ad coelom et ad inferos in validating his solution, however Griffiths J stated that the trespass didn’t require any actions settled that with scientific developments giving permission for airspace , the maxim wasn’t able weigh out the rights of landowners and those of the rights of the public .He held that there should be limitations for rights of the landowner to the airspace above his land .Statute intruded that ,overflight from aircraft isn’t actionable in the case that they were flying at a height rational in the situation.
Hedge and Ditch Rule
The Hedge and Ditch rule expresses where land of adjoining owners is detached from a hedge with a ditch, when there is lack of evidence whatsoever and in contrast, the hedge and ditch would both be the property of the owner of the land on the same part of the hedge. Since the early 19th century this regulation has utilized, however both beliefs on which its established were listed from the courts in 1999, in the case of Alan Wibberley Building Limited v Insley. Both beliefs would be: the ditch was dug following the boundary to be drawn also the other would be that the ditch was dug also hedge developed in the succeeding method “someone forming a ditch cuts into the most limit (for instance, boundary) of his own land also would throw the soil which he digs out on his own land also eventually plants a hedge onto it which was illustrated in Vowles v Miller. ”
Law of Property Act States that “Land” involves the land of all tenure, mines, minerals even if its divided from the surface, buildings even sections of buildings(If there horizontal ,vertical even in another way) also variant corporeal hereditaments, a manor, an advowson, additionally a rent and various incorporeal hereditaments, an easement, right, privilege, either benefit in, over, or derived from land; also “mines and minerals” involving any strata whether seam of minerals or substances in or under any land, also powers of working and getting the same , additionally “manor” comprises of a lordship, furthermore regarded signifies any genuine property that on an intestacy happening prior to the commencement of the Act could have delegated on the heir.
Bocardo SA v Star Energy UK Onshore Ltd
In Bocardo SA v Star Energy UK onshore Ltd there is debate as to bore inn and drill for oil would be classed as an offence, if they bore and drill a licenced land without negotiation or acceptance from the landowner and that under the land is owned by someone else
Star Energy was accepted to search, bore for and extract petroleum however the oil field was owned from Bocardo, in reaching, the licence holder drilled diagonal wells but in fact neither the original licence holder or Star Energy sought agreement from Bocardo which made Bocardo bring action for trespassing
Trespass
Trespassing occurs when someone is unauthorised entry to property intentionally, reckless, even negligent entry into a property. it’s also considered Trespass when there is for example horizontal drilling and in the air, such as stringing telephone wires, however air rights are still debatable yet, if there’s continuous unauthorized presence such as throwing trash on land than it remains as trespass till its removed.
It has been talked about if Bocardo was able to bring a case for trespass against Star Energy, whether he had his possession of substrata estimately to where Star Energy had their wells
In Powell v McFarlane Slade J stated that: “In the event of lack of evidence in contrast however land owner who is in possession of land also paper title would be person with the prima facie granted to possession, therefore without hesitation it would be either paper owner or persons who could demonstrate title that they are owner by paper. “
Lord Browne-Wilkinson has stated if there is no requisite intention in law than there would be no possession which is applicable to the question when law is to assign to the person possession of land due to them not able to demonstrate paper title for possession, however in the case of Bocardo who has the paper title, lack of evidence in contrast, would be sufficient for it to be in possession of the land
Conclusion
The case of Bocardo demonstrates, despite the fact that there are restrictions of rights of the freehold owner of land, including any gold, silver, saltpetre, coal and petroleum which are property of the crown however even though the rights to bore are property of the crown, freehold owner must give his acceptance for other person/companies to bore on the freeholder’s land, Bocardo should be considered to be in possession of the subsurface strata too. Only Bocardo is expressing to be in possession of those strata as the paper owner.