Historically an owner in fee simple held the rights not only to what was on the surface of the land but also to what was above the land i.e. airspace, and to what was below the surface for example minerals, in line with the Latin maxim cuius est solum, eius est usque ad coelum et ad inferos which means “…. whoever owns the soil, holds title all the way up to the heavens and down to the depths of the earth ….”
205 1 (ix) of the Law of Property Act 1925 gives us a more contemporary definition. The subsection reads as follows: –
“Land” includes land of any tenure, and 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; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; . . . and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same . . .; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;
In Pickering v Rudd (1815) the occupant of an adjoining property put up a signboard which reached into his neighbors’ property and the claimant brought an action against the person who’d put up the signboard for trespass i.e. unauthorized intrusion into his airspace. It was held that the board did not constitute trespass.
“If this board overhanging the plaintiff’s garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clausum fregit, at the suit of the occupier of every field over which his balloon passes in the course of his voyage. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is invaded. If any damage arises from the object which overhangs the close, the remedy is by an action on the case.” – Lord Ellenborough
In Bridges v Hawkesworth (1851) the plaintiff was a traveler who frequented the defendant’s shop. During one of the visits the plaintiff found a parcel on the shop floor and when he opened it, he realized that the parcel contained banknotes. The plaintiff handed the defendant the parcel telling him to keep it until the person it belonged to came around to collect it.
Three years had lapsed and no one had come to collect the parcel. The plaintiff then sought to take the parcel back from the defendant but the defendant refused to give it back to him and the matter was taken to court. The question before the judge was whether the parcel belonged to the plaintiff or the defendant.
It was held that the mere fact that a parcel containing banknotes was found on the defendant’s shop floor was not sufficient to allow the defendant to keep the banknotes and the plaintiff or the finder was entitled to keep them.
In Wandsworth Board of Works v United Telephone Co. (1884) it was held that an unauthorized telephone wire that passed over the plaintiff’s land was an intrusion to his airspace and that the plaintiff was within his rights to cut the telephone wire
“As at present advised I entertain no doubt that an ordinary proprietor of land can cut and remove a wire, placed at any height above his freehold” – Fry J.
“The man who has land has everything above it, or at all events is entitled to object to anything else being put over it”. – Bowen L.J.
In Elwes v Brigg Gas Company (1886) a tenant on a property discovered an ancient boat of some value some 6 feet below the ground and sought to make it his. The owner brought an action in court claiming that the boat belonged to him and it was held that the boat belonged to the owner i.e. the owner of the land had proprietorship of the boat and not the tenant.
“Whether the boat was regarded as mineral or part of the soil in which it was embedded, when discovered, it belonged to the landowner.”
In Gifford v Dent (1926) a sign that had been erected on a wall on the ground floor premises and stood some four feet eight inches above the floor was held to constitute a trespass. “Accordingly I reach the conclusion that a trespass and not a mere nuisance was created to the plaintiff’s airspace by this sign.” – McNair J
An aircraft flying over private property however does not constitute trespass by virtue of the Civil Aviation Act 1949. S 40 (1) of the act elaborates further on the subject:-
“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight so long as the provisions of Part II and this Part of this Act and any Order in Council or order made under Part II or this Part of this Act are duly complied with.”
In Hannah v Peel (1945) the plaintiff, a soldier stationed in the defendant’s house found a brooch that he handed to the police. The police contacted the defendant who denied any knowledge of the brooch and after twelve months of the brooch being kept by the police and failing to locate the owner, the police contacted the defendant and asked him to come and collect the brooch.
The defendant did so and later sold the brooch. The plaintiff learnt of the sale and brought an action against the defendant claiming the proceeds from the sale.
In line with the decision in Bridges v Hawkesworth (1851), the plaintiff was entitled to the proceeds from the sale. The mere fact that the brooch was found in the defendant’s home was not sufficient to allow the defendant to keep the proceeds from the sale and the plaintiff was entitled to the proceeds.
We also have to look at it in light of the fact that the plaintiff had taken the trouble to take the brooch to the police station and had made an effort to return it to the rightful owner and from that perspective had provided some form of consideration while the defendant had done nothing.
In Hibbert v McKiernan (1948) the defendant collected lost golf balls in a golf course and sold them. Representatives of the golf club had caught him on numerous occasions and had warned him but the defendant persisted and was eventually arrested, tried and convicted. He appealed on the grounds that the balls were actually lost and therefore he could legally appropriate them.
The conviction was upheld. The golf club had sufficient proprietary rights as owners or managers of the golf course and as a trespasser the defendant could not claim ownership of the golf balls.
In Kelsen v Imperial Tobacco (1957), the defendant an owner in fee simple (landowner) leased part of his property, from where he ran a wholesale tobacco business, to the plaintiff who operated a tobacconist shop and resided in the flat upstairs.
The defendant erected a sign, some four feet above the ground, that protruded into the plaintiff’s airspace and the plaintiff brought an action against the defendant.
It was held that the sign constituted a trespass (an intrusion, infringement or transgression) of the plaintiff’s airspace and an injunction was granted to prevent the sign from being put up.
In Commissioner for Railways v Valuer-General (1974) (New South Wales – Court of Appeal) the appellants contended that the valuation given for taxation purposes by a railway company was too high and in certain instances the valuers did not take into account anything that was 20 feet below the land or restricted the valuation to what was on the surface or extended to as far as 20 feet below.
The court re-examined the Latin maxim cuius est solum, eius est usque ad coelum et ad inferos i.e. “…. whoever owns the soil, holds title all the way up to the heavens and down to the depths of the earth ….”.
“whether with reference to mineral rights, or trespass in the air space by projections, animals or wires, is imprecise and it is mainly serviceable as dispensing with analysis”. – Lord Wilberforce.
In Grigsby v Melville (1974) the plaintiff and the defendant purchased two semidetached houses that was initially owned by a single owner. The plaintiff’s house had a cellar and the entrance to the cellar was on the defendant’s property. The plaintiff discovered that the defendant had been using his cellar and sought an injunction to prevent the defendant from using it. The defendant contended that the cellar had been conveyed to her and not the plaintiff and that she had an easement (a right to cross over or enjoy someone else’s land).
The court of appeal held that the plaintiff’s ownership of the land included the cellar underneath. “It is, however, axiomatic (self-evident and unquestionable) that a conveyance of land carries with it all that is beneath the surface.”
In Bernstein v Skyviews & General Ltd (1977) the defendant took aerial photographs of numerous properties which he intended to sell to the owner of the properties. The plaintiff the owner of one of the properties brought an action against the defendant claiming that the defendant’s actions breached the plaintiff’s privacy and that the defendant had intruded on the plaintiff’s airspace.
It was held that there was no breach of the plaintiff’s privacy and neither was there an intrusion into his airspace. The plaintiff has all the right to enjoy as much of his airspace as is reasonable and to claim that the plaintiff enjoyed rights to the altitude that the airplane was flying at was unreasonable.
The court once again clarified the Latin maxim cuius est solum, eius est usque ad coelum et ad inferos i.e. “…. whoever owns the soil, holds title all the way up to the heavens and down to the depths of the earth ….” and incorporated a reasonableness test into it to ensure that it was practical. “Legal theory must give way to practical politics” – Blackburn v Attorney-General (1971) – Lord Denning MR.
In Parker v British Airways Board (1982) the plaintiff found a gold bracelet in the British Airways lounge and handed it over to an employee of British Airways on the terms that if British Airways failed to locate the owner the bracelet should be returned to him and gave the employee his name and address so that British Airways could do so.
When the bracelet remained unclaimed, British Airways sold the bracelet for £850 and it retained the proceeds despite the fact that the plaintiff had specifically told them that should they fail to locate the owner the bracelet should be returned to him.
It was held that the first in time should prevail and in the absence of trespass or a breach of the law the bracelet belonged to the plaintiff. The court also took into account the fact that the bracelet was lying loosely on the floor and was in no way attached to the land.
The court laid down the rights and obligations of the finder and the occupier
Rights and obligations of the finder: –
The finder of a chattel acquires no rights over it unless
(a) it has been abandoned or lost
(b) he takes it into his care and control.
The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest intent or there was trespass.
Subject to the foregoing and to point 4 below, a finder of a chattel, whilst not acquiring absolute property or ownership in the chattel, acquires rights to keep it against all but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control.
Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment and not wholly incidentally or collaterally thereto and who takes it into his care and control does so on behalf of his employer or principle who acquires a finder’s right to the exclusion of those of the actual finder.
A person having a finder’s right has an obligation to take appropriate measures as in all the circumstances are reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it meanwhile.
Rights and obligations of the occupier: –
An occupier has rights superior to those of a finder over chattels attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of its presence.
An occupier of a building has rights superior to those of a finder over chattels on or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be on or in it.
An occupier who manifests an intention to exercise control over a building and the things which may be on or in it so as to acquire rights superior to those of a finder is under an obligation to take such measures as in all the circumstances are reasonable to ensure that lost chattels are found and, on their being found, whether by him or a third party, to acquaint the true owner of the finding and to care for the chattels meanwhile. The manifestation of intention may be express or implied from the circumstances including, in particular, the circumstances that the occupier manifestly accepts or is obliged by law to accept liability for chattels lost on his ‘premises’.
An “occupier” or a chattel – e.g. a ship, motorcar, caravan or aircraft – is to be treated as if he were the occupier of a building for the purposes of the foregoing rules.
In Anchor Brewhouse Developments v Berkley House Ltd (1987) the jib (the projecting arm) of the defendant’s crane passed over the defendant’s land during construction work in an adjoining piece of land. The claimant brought an action for trespass against the defendant for intruding into the defendant’s airspace and was successful.
Trespass is actionable per se i.e. the fact that it was committed is enough grounds for a court to grant an injunction.
In Waverly Borough Council v Fletcher (1995) the defendant was out in a park owned by Waverly Borough Council with his metal detector to see if he could stumble across lost treasure and as luck would have it he found a gold medieval brooch which he handed over to the coroner to determine if it was a treasure trove. An inquiry was conducted and it was decided that the item was not classed or categorized as a treasure trove and the item was returned to the defendant. Waverly Borough Council then brought an action against the defendant claiming that the brooch was theirs because it was found buried in their land.
It was decided that the brooch belonged to the council. The facts in the case can be distinguished from the facts in Parker v British Airways Board (1982) in that, in Parker, the bracelet was lying loosely on the floor while in the present case the brooch was buried in the ground i.e. in some way annexed to the land.
Any item of value that is found on any piece of land that falls within the scope and ambit of the Treasure Act 1966 is considered or regarded as treasure.
1 of the act defines treasure: –
(1) Treasure is—
(a) any object at least 300 years old when found which—
(i) is not a coin but has metallic content of which at least 10 per cent by weight is precious metal;
(ii) when found, is one of at least two coins in the same find which are at least 300 years old at that time and have that percentage of precious metal; or
(iii) when found, is one of at least ten coins in the same find which are at least 300 years old at that time;
(b) any object at least 200 years old when found which belongs to a class designated under section 2 (1);
(c) any object which would have been treasure trove if found before the commencement of section 4;
(d) any object which, when found, is part of the same find as—
(i) an object within paragraph (a), (b) or (c) found at the same time or earlier; or
(ii) an object found earlier which would be within paragraph (a) or (b) if it had been found at the same time.
(2) Treasure does not include objects which are—
(a) unworked natural objects, or
(b) minerals as extracted from a natural deposit, or which belong to a class designated under section 2(2).
4 is with regards of ownership of treasure:-
(1) When treasure is found, it vests, subject to prior interests and rights—
(a) in the franchisee, if there is one;
(b) otherwise, in the Crown.
(2) Prior interests and rights are any which, or which derive from any which—
(a) were held when the treasure was left where it was found, or
(b) if the treasure had been moved before being found, were held when it was left where it was before being moved.
(3) If the treasure would have been treasure trove if found before the commencement of this section, neither the Crown nor any franchisee has any interest in it or right over it except in accordance with this Act.
(4) This section applies—
(a) whatever the nature of the place where the treasure was found, and
(b) whatever the circumstances in which it was left (including being lost or being left with no intention of recovery).
7 gives us the jurisdiction of the coroner.
Copyright © 2019 by Dyarne Jessica Ward