Owning air space
09/07/2002 The Star Articles of Law with Bhag Singh
LAND is a precious and valuable asset. If the landowner were to stand on his
plot of land and look towards the horizon he may ask himself how far his rights
extend. It is relevant to examine the provisions of the law in the National
Land Code. The definition of land is provided in Section 5 of the Code.
It says that land includes (a) the surface of the earth and
all substances forming that surface; (b) the earth below the surface and all
substances therein; (c) all vegetation and other natural products, whether or
not requiring the periodical application of labour to their production, and
whether on or below the surface; (d) all things attached to the earth or permanently
fastened to anything attached to the earth whether on or below the surface;
and (e) land covered by water.
It will be observed that the meaning given to the words in
the Land Code is not exhaustive but an inclusive one. The word therefore could
have all the meanings stated and include other meanings.
However, how far do the rights of the owner of land extend?
There have been laws and cases decided, as well as established maxims of olden
times, which suggest that the owner of the soil is also the owner of what is
above and below.
In the light of this concept a reader has asked how far a
person has rights in the space above the land.
The answer cannot be specific. Ownership is usually thought
to be related to tangible items. So is ownership of “space” really possible?
Nevertheless such questions have arisen in the past and will
continue to arise in the future. Such questions are more directed at the questions
of rights to the space rather than ownership of it. Some guidance may be obtained
from previous cases.
In the Canadian case of Lacroix vs the Queen, the owner of
a piece of land contended that the establishment of a flight path and the flying
of planes over his land was an interference with his rights of ownership and
a disturbance of his full enjoyment of his property.
His arguments were based on the assumption that the soil
carried with it the ownership of what is above and below and that the flying
of planes in the air space over private property disturbed the owner in the
enjoyment of his land. He contended that the flight path had caused his property
to lose market value because of the appropriation for exclusive use by the Crown
of the air space over his land.
However, the contention was not acceptable to the court which
took the view that “to agree with the position taken by the complainant that
the Crown, by expropriating an easement for a lighting system, had created a
flight path and appropriated air space over his land would be admitting that
air and space may be appropriated or possessed.”
The judge went on to say, “In my view, air and space are
not susceptible of ownership and fall in the category of res omnium communis
(space as the common heritage of mankind), which does not mean that the
owner of the soil is deprived of the right of using his land for plantations
and constructions or in any way which is not prohibited by law or against the
public interest.”
The view taken was that the owner of land has a limited right
in the air space over his property; it is limited by what he can possess or
occupy for the use and enjoyment of his land. By putting up buildings or other
constructions the owner does not take possession of the air but incorporates
something to the surface of his land. That which is annexed or incorporated
to his land in turn becomes part of the property he owns.
In another case, Bernstein of Leigh (Baron) vs Skyviews &
General Ltd, the defendants flew over the plaintiff’s land to take an aerial
photograph of the plaintiff’s country house which they then offered to sell
to him. The plaintiff claimed damage, alleging that by entering the air space
above the property to take aerial photographs, the defendants were guilty of
trespass.
Here, too, the court took the view that the defendant’s action
did not constitute trespass and therefore was not actionable. As to whether
there was invasion of privacy is another matter. The court took the view that
in this instance there was no appropriation of air or space over his land and
did not interfere with his rights. The owner of land cannot be the owner of
unlimited air space over his land.
It will therefore be seen that the principles such as “the
owner of the soil is the owner of what is above and below” are today somewhat
obsolete in the context of present day developments. It was a principle accepted
at a time when nobody could foresee modern inventions like aeroplanes. Courts
have proceeded on the basis that it would be difficult to apply rules of law
of the past which are now irrelevant.
The meaning of land and the rights of the landowners of what
is below and above is also regulated by other laws, which control the kind of
structures that can be constructed. The situation is best summarised by Griffiths
J. in the case mentioned earlier: ”The problem is to balance the rights of an
owner to enjoy the use of his land against the rights of the general public
to take advantage of all that science now offers in the use of air space. This
balance is in my judgement best struck in our present society by restricting
the rights of an owner in the air space above his land to such height as is
necessary for the ordinary use and enjoyment of his land and the structures
upon it, and declaring that above that height he has no greater rights in the
air space than any other member of the public.”
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