(1)
Maxim 1: Cuius est solum. This deals with ownership of air space and
subsoil. Cuius est solum, eius est usque ad coelum et ad inferos
translates
“whoever owns land owns to the heavens and to the bowels of the earth”. This
maxim confers on the owner of land ownership of all the air space above it
and of all the soil below it. It has been modified by statute (for example to
accommodate prospecting and mining) and by common law
302
out of
necessity to limit the extent of the claims in both directions. Nevertheless the
core of the principle remains as good law.
303
(2)
Maxim 2: Quicquid planatatur. This deals with fixtures, which are
things attached to the earth. Quicquid plantatur solo, solo cedit says that what
is affixed to land becomes part of the land. In other words, if something
becomes
sufficiently affixed to the land it ceases to be personal property and
becomes part of the land and thus real property.
Special Case 1: Tree Roots Under Two Blocks of Land
One illustration of the quicquid planatatur maxim relevant to this discussion
is a tree that grows on land. On a simple application of the maxim, if a tree
grows on land, it becomes part of the land. But what is the legal position when
a tree planted on Land 1 near the boundary has roots that spread underneath
the soil to the neighbour’s land, Land 2? There
are at least two ways of
resolving this issue:
(1)
Solution 1 says that the original owner of the tree still owns the tree
despite some of its roots’ growing in the neighbour’s land. In other words,
Land 1 had a complete prior claim over the entire root system since the root
system grew out of Land 1. This solution effectively applies the basic law that
determines priorities over interests, namely first in time is first in law.
304
(2)
Solution 2 says that the owners of Land 1 and Land 2 jointly own the
tree in that each owns the part of it that was under their land. In fact Solution 2
is the view of the law propounded in an English case, Waterman v Soper.
305
Special Case 2: Branches of a Tree Overhanging Adjoining Land
Another special case involves two adjacent pieces of land, Land 1 and Land 2,
and it arises when three things occur:
(1)
A tree is planted on Land 1.
(2)
The roots of this tree are entirely within Land 1, the land from which the
tree springs.
(3)
Some branches of the tree planted on Land 1 overhangs Land 2.
302
See for example Bernstein v Skyviews [1978] QB 479. See also Tileska v Bevelar
(1989) 4 BPR 9601
303
Kelsen v Imperial Tobacco Co [1957] 2 QB 334
304
This was originally phrased in Latin as qui prior est tempore potior est jure.
305
Waterman v Soper (1697) 1 Ld Raymond 737. There was, however, a contrary
rule in another case, Lyman v Hale (1836) 11 Conn Rep 177.
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