Intro Notes

Restrictions on the Multiplicity of Proprietary Rights

• Category of rights affecting land which fail to qualify as proprietary : only enforceable vs. the person who created them e.g. a licence

• The General Principle : Subject to occasional exceptions – proprietary rights of limited use should not result in the ability to compel another to do a positive act

1. Check if the right is proprietary

2. Definition of that right – definitional requirements

3. Must comply with formalities set down for acquisition of the right

What is Land?

• Law of Property Act 1925

  • Land includes the physical land and buildings on it – including fixtures (corporeal hereditaments)

  • Includes intangible rights over the land (incorporeal hereditaments) such as an easement

Cuius Est Solum Eius Est Usque Ad Coelum Et Ad Infernos

Ancient Latin maxim – means he who owns the land owns everything up to the heavens above / depths below -doesn’t have universal applicability

• Space below the ground

  • Grigsby v Melville : cellar – ruled that it belonged to the person who’s house was above - land ordinarily carried with it all that is beneath the surface

• Airspace

  • Owner’s rights in the airspace above his land are restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it. Above this, he has no greater rights than any other member of the public: Bernstein of Leigh v Skyviews & General Ltd

1. The lower airspace: trespass irrespective of whether damage is caused to property

1. Kelsen v Imperial Tobacco Co: advertising sign erected into the airspace above the C’s shop by a few inches – court granted mandatory injunction requiring D to remove it

2. Wollerton & Wilson Ltd v Richard Costain: D’s crane overhung C’s premises 50 feet above roof level: injunction to restrain the trespass, although the court exercised discretion to postpone injunction for a year

   • London & Manchester Assurance Co v O & H Construction: judge granted injunctions to restrain over-swinging crane and other encroachments

3. Lemmon v Webb: Neighbouring owner is entitled, without prior notice, to lop off overhanging branches that intrude into his airspace – but he is NOT entitled to enter onto the neighbour’s land to do this, except in cases of emergency

4. Ellis v Loftus Iron Company: Horse putting its head across dividing fence constituted trespass

5. Laiqat v Majid: D installed extractor fan which protruded by 750 millimetres into the C’s back garden at a height of 4.5m – this amounted to a trespass: ‘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 science now offers in the use of the airspace’ – hence distinction between upper and lower

2. The Upper airspace:

   • Bernstein of Leigh v Skyviews & General Ltd: D flew over C’s house taking an aerial photograph: not trespass as was flying hundreds of feet above the ground so was not interfering with the C’s use of the land

   • S76(1) Civil Aviation Act 1982: immunity from trespass or nuisance for any flight of an aircraft ‘at a height above the ground which…is reasonable’: subject to air traffic control regulations – no aircraft may fly closer than 500 feet

• Water

1. Lakes: sub-soil under water belongs to owner of the land in which lake stands

2. Rivers: owner of the land through which it flows or else if it is a boundary btw 2 plots – up to the middle line

   • Rights to abstract water governed by Water Resources Act 1991

• Boundaries

  • If property is bounded by a river, a road or a highway: presumption that the adjacent landowner owns property up to the middle line

    • If a road is adopted by the local authority, the responsibility for upkeep is on authority, but it only owns the surface of the road itself. The sub-soil remains within the ownership of the frontages and the surface reverts to them should the road be closed

  • If riverbed changes course, the extent of the land owned changes accordingly

  • If land is bounded by sea, boundary is the high water mark. The land between the high and low water mark belongs to the Crown

• Support

  • There is a right of support to land in its natural state but not to buildings erected on the land

• Wild Animals

  • Not subject of absolute ownership but landowner has right to hunt and catch wild animals on the land (subject to any relevant animal protection legislation) and on death they become personal property of landowner

  • If animals flee to adjacent land, the adjacent landowner can take up the chase

Things found on the land

1. Treasure trove

   • Vests in the Crown: Treasure Act 1996 (treasure define in section 1)

   • Treasure (Designation) Order 2002: has expanded classification of those objects which can be designated as ones of outstanding historical, archaeological or cultural importance. Now include:

1. Any object (other than a coin), any part of which is a base metal, which when found is one of at least two base metal objects in the same find of prehistoric date

2. Any object (other than a coin) which is of prehistoric date any part of which is gold or silver

2. Objects which are not treasure trove

• Depends on whether it is attached/embedded to the land or if it’s on the surface

1. In/attached to the land

   • Waverley B.C. v. Fletcher: belongs to W because it was found on their land

2. Unattached to the land

• Depends on the behaviour of the landowner:

  • Parker v. British Airways Board:

    • Parker found gold bracelet and handed it in, asking if he could have it back if owner was not found. Instead, BA auctioned the gold bracelet

    • Held that Parker was entitled to the bracelet as the landowner had failed to manifest an intention to exercise right to the land (no lost & found signs): depends on degree of control exercised over the land (bank manager analogy)

  • Bridges v Hawkesworth:

    • Money found by a customer on the shop floor belonged to the customer, not the shopkeeper

    • Shop was a public place and the shopkeeper did not manifest an...

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