Now the ordinary rule of law is, that whoever has got the solumwhoever has got the siteis the owner of everything up to the sky and down to the centre of the earth (Corbett v Hill (1870) LR 9 EQ 671 at 673, per Sir William J
Mohammed Sbahuddin Rafiuddin 626290
‘Now the ordinary rule of law is, that whoever has got the solum—whoever has got the site—is the owner of everything up to the sky and down to the centre of the earth’ (Corbett v Hill (1870) LR 9 EQ 671 at 673, per Sir William James V-C).
Explain the above statement and discuss its accuracy in relation to airspace and subterranean space. You should include in your answer a discussion of whether it might be possible to claim adverse possession of airspace and subterranean space.
(You should not consider fixtures or finder’s titles.)
The law concerning airspace and subterranean space appears to be exceptionally complex and to an extent even outdated. Sir William James’ attempt to clarify the law using the Latin maxim “cuis est solum eius est usque ad coelum et ad inferos” seems to have created even more legal uncertainty and appears to have done more harm than good. The maxim is now subject to vast exceptions as well as having been denounced by contemporary legal commentators and even senior judges. This essay will explore the accuracy of Sir William James’ judgement; it will also question the argument that the maxim is still considered “the ordinary rule of law” and will look at how modern land law has gone about dealing with the legal confusion caused by this judgement, focusing primarily on airspace and subterranean space.
Firstly, in order to explain the above statement, it may be beneficial to look closely at the facts of the case in which the judgement was made (Corbett v Hill 1870). In brief, the case concerned the trespass of land where the claimant failed in attempting to seek an injunction to stop the defendant building a room over-looking the claimant’s property. After citing the maxim as being the “ordinary rule of law”, Sir James admitted its exceptional level of legal ambiguity and even conceded that “no doubt, [the maxim] is frequently rebutted”, especially in regards to “property in towns… [by]…other adjoining tenements”. Thus, in relation to the accuracy of the statement, one must appreciate the case is from the 19th century; during a time when technology had not progressed as much as it has today and accordingly airborne methods of transport had not yet been invented. This meant trespassing through the higher levels of airspace would not have been an issue and consequently, detailed legislation regarding the law of airspace may not have been considered necessary at the time. Hence, it may be argued that Sir William James simply cited the maxim with the intention of it serving merely as a rough direction of law but, unaware of the rapid advancement of technology within the 21st century, and so the inventions of aeroplanes and other methods of aerial transport have subsequently required clarification within the law of airspace and have demonstrated the impracticality of applying the maxim in modern times.
Inevitably, the judgement has caused vast legal uncertainty and for this reason has been at the centre of immense criticism from both legal commentators as well as even senior judges. The suggestion that a land owner has complete control of “everything up to the sky and down to the centre of the earth” is not only practically unrealistic, but also, theoretically delusional which has resulted in Sprankling dismissing the maxim as merely a “poetic hyperbole” suggesting its over-dramatic implications regarding a landowners rights in airspace and subterranean land. This criticism is supported by Lord Wilberforce who has openly criticized the maxims feasibility as being “sweeping, unscientific and impractical”. Furthermore, its implication that land is only measureable on a two-dimensional level (in terms of its physical structure) is an argument that has been strongly dismissed by Gray and Gray (2009) who claim that portions of a land may be owned by several different owners and thus claim that “a transfer of a merely two-dimensional plot of land would have little meaning and even less utility”. They argue that a third dimension of land should have been recognised within the maxim and should now be explicitly acknowledged by the courts as they believe it can exist as “as an independent unit of real property”. Gray and Gray (2009) further criticise the maxim for being “virtually worthless” suggesting it holds very little, if any, legal value in the modern legal system. Hence, these strong dismissals and denunciations of the maxim by senior academics and legal professionals may be argued as representing the modern attitude towards it; suggesting its significance in modern land law is not as much as it was when cited in the 19th century or at the time of its creation.
Inevitably, as a result of the vast legal ambiguity and immense criticism that the judgement has faced, a major attempt to rectify the confusion regarding airspace finally came about with the establishment of the terms “the lower stratum” and “the upper stratum”. Although these terms appeared to contradict the maxim, they created a groundbreaking change in the law of airspace by splitting airspace into two categories. The lower stratum is that which was necessary for the landowners’ reasonable enjoyment. In Bernstein it was held that determining the requirement of “reasonable enjoyment” is dependent on the “type, height and size of the property”. Whereas, “the upper stratum” is “that which is above the height which is reasonably necessary for the ordinary enjoyment”. In Bernstein, Griffiths J also stated that a landowner has no greater rights in the upper stratum than any other member of the public. This is also identically reflected with the obiter dicta of Lord Brown in Bocardo SA (2010) where he stated that “the air is a public highway” and if that was not true then “every transcontinental flight would subject the operator to countless trespass suits.” Both statements appear to be valid and rational as there can be no private ownership of airspace which is entitled to the public. However, both of these statements appeared to be expressly undermined in Kelsen (1957) where it was held that the placing of an advertisement banner on (the upper stratum of) another person’s land, although did not interfere with the defendants “reasonable enjoyment”, yet still constituted a trespass. This judgement can be criticised on the basis that it appears to overtly contradict the basic judgement in Bernstein and the consequently conventional principle that the “upper stratum” is open for the use of the public and that the landowner has no greater rights to it over any other public. However, in Liaqat v Majid, Silber J justly diverged from the judgement in Kelsen and rightfully re-emphasized the principle established in Bernstein stating where the interference of land was at a height that “did not interfere with the claimant's airspace” then it does not constitute a trespass. This principle was further re-emphasized in Manitoba and Air Canada (1978) in which the state of Manitoba argued that goods being sold on an aeroplane flying over Manitoba could be subjected to domestic taxing. Prima facie, it appears that if the maxim is applied retrospectively then technically Manitoba’ argument should be accepted, however, the maxim was again dismissed by the court and the claim failed as they emphasized the judgement in Bernstein that there can be no ownership of the upper stratum. The inaccuracy of the maxim is further demonstrated by the enactment of The Civil Aviation Act (1982). Section 76(1) discusses grounds for trespass and nuisance stating that no action can arise if an aircraft is flying over a property, providing it has shown consideration to the wind, weather and so long as “all circumstances of the case [are] reasonable”. The wording of this statute appears to be as equally ambiguous as the maxim itself in the sense that it leads to the question how would a mere bystander or a reasonable man know if an aircraft has had taken the wind and the weather into consideration and that all the circumstances of his flight are “reasonable” before establishing if his/her airspace had been trespassed?. Although there are exceptions for aeroplanes landing and taking off, the general rule stated in the Rules of the Air (Amendment) Regulations 2005 is that it is not permissible for an aircraft to fly any “closer than 500 feet to any person, vessel, vehicle or structure.” Both statues have considerably clarified the confusion regarding invasion of airspace and have further demonstrated the inaccuracy of Sir James’ statement.
