Property Law

Topics: Air rights, Tort, Easement Pages: 6 (1834 words) Published: March 17, 2013
Rights above and below land
The concept of “land” only extends upwards to a height necessary for the ordinary use and enjoyment of the surface (Bernstein v Skyviews & General Ltd [1978])Trespass above land at lower levels: “not whether the incursion actually interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake” (LJP Investments v Howard Chia Investments (1989). Concept of Land

•The common law meaning of the land is any area, of three dimensional space, with its position identified by natural or imaginary points located by reference to the earth’s surface: Ball, “The Jural Nature of Land” (1928) 23 ill LR 45 •It may be wholly above it or below it. The space may have physical contents or may be a void. …But the land is more than those fixed contents, because if the contents of the space are physical severed, destroyed or consumed, that space itself-and so the land remains: BUTT [202] Re Trizec Manitoba Ltd (1986) 25 DLR •A statue may define land…examples being §21(1) of the interpretation act 1987, §3 or the RPA or §7 of the Convey Act. BUTT [202] •Whether the statue definition corresponds with the common law concept is a matter of constructing the statue: City Mutual Life Assurance Society Ltd v Smith (1932) 48CLR 532 •Where a statue uses the word ‘land’ without further definition, it is a matter of construction of the statue whether the common law meaning of the word is intended: Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199

•The laws governing the rights of land above and below are traditionally explained in the maxim, “Cuius Est Solum eius usque ad coelum et inferos” which means – the person who owns the land owns it from the heaven above to the centre of the earth below. •The starting point should always be the terms of the crown grant, did it impose height or depth restrictions. If so there is no common law application. •Recently, English court of appeal described this maxim as “not part of English law”: Bocardo SA v Star Energy Onshore Ltd [2009] 3 WLR 1010 Rights above the surface

Intrusions: There are 2 types of intrusions:
-Statutory incursions (overhead wires)
-Easements (sewerage pipes)

* Temporary
-Cranes or a bullet over your property (Davis v Bennison)

Transient intrusions
* Recent cases held that transient intrusions into airspace do constitute trespass. Davis v Bennison(1927) 22 Tas LR 52 at 56 held that to fire a bullet across another’s land constitutes a trespass, regardless of whether the bullet touches the surface. * In Australia Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 held that the intrusion of a crane jib into the airspace above land is a trespass. Permanent intrusions

* Case involving permanent intrusions are more consistent, where intrusion into the land of another is a trespass. * Trespass occurs where telephone wires: Wandsworth District Board of works v United Telephone co Ltd (1884) 13 QBD 334 * Advertising signs: Kelson v Imperial Tobacco Co Ltd [1957] 2 QB 334 * That are placed in the airspace above the surface of land without consent of the owner or tenant of the surface. Height Limitations

* Australian courts have consistently granted injunctions to restrain trespasses caused by encroaching building operations. That is a trespass only occurs where the incursion into the airspace is of a nature and at a height that may interfere with the occupiers ordinary use of the land LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 •Bernstein v Skyview & General Ltd [1978] QB 479 where the flight of an aircraft may hundreds of feet above the ground was held not to constitute a trespass. Griffiths J held that the surface owners’ rights in air space...
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