Cuius est solum eius est usque ad coelum et ad inferos
Encyclopedia
Cuius est solum, eius est usque ad coelum et ad inferos (Latin
for [for] whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell) often appearing in the shorter form Cuius est solum eius est usque ad coelum, omitting et ad inferos "and to hell", is a principle of property law
, stating that property holders have rights not only to the plot of land itself, but also to the air above and (in the broader formulation) the ground below.
In modern law, this principle is still accepted in limited form, and the rights are divided into air rights
above and subsurface rights below. Property holders generally have a right to the space immediately above and below the ground – preventing overhanging parts of neighboring buildings – but do not have rights to control flights far above their property, or subway construction below. In dense urban areas, air rights may be transferable (see transferable development rights) to allow construction of new buildings over existing buildings.
The phrase (in air form) is credited to 13th century Italian jurist Accursius, and is said to date in common law
to the time of Edward I. It was more recently promulgated, in broad form (air above and ground below) by William Blackstone
in his influential treatise Commentaries on the Laws of England
(1766); see origins, below, for details. This article primarily discusses the applications to air rights.
against people who violated the border but never actually touched the soil. As with any other property rights, the owner can sell or lease it to others, or it may be taken or regulated by the state
.
For example, suppose three people owned neighboring plots of land. The owners of the plots on the ends want to build a bridge over the center plot connecting their two properties. Even though the bridge would never touch the soil of the owner in the middle, the principle of cuius est solum would allow the middle owner to stop its construction or demand payment for the right to do so.
By the same principle, a person who wants to mine
under somebody's land would have to get permission from the owner to do so, even if the mine entrance was on neighboring land.
Accursius in the 13th Century. It has been suggested that the principle was brought to England by Accursius's son, Franciscus Accursius
, who came to England with Edward I on the latter's return from the crusades. The principle was firmly established in common law by Edward Coke
in Bury v. Pope (1587), which gives the first statement in English law of the principle, writing (Liber 1, section 1, page 4, section "Terra" (earth)):
The reporter's note to this case ascribes the maxim to the time of Edward I, which accords with the attribution to Accursius (father and son). Two other cases around 1600 also use the principle, and a number of 19th century cases also apply it.
The phrase appears in Blackstone's Commentaries, Book 2, Chapter 2, p. 18:
This formulation, though it omits the et ad inferos "and to hell" wording, includes that interpretation ("and the center of the earth"). Largely through the influence of Blackstone, this broader formulation became influential in American law
. See Sweeney reference for various formulations of the principle in Anglo-American law.
The principle does not occur in classical Roman law
. The phrase was used by Accursius in discussion of rights to have burial plots or tombs free from the interference of an overhanging building. In Coke's formulation, he cites three cases involving birds; the circa 1600 cases involve overhanging roofs, while the 19th century cases address diverse topics. The principle attracted increased interest in the 20th century with the development of airplanes occasioning much discussion, particularly in the 1930s, and the development of space travel yielding further discussion in the 1960s; some earlier discussion had also occurred around hot air balloons.
In American law, the formulation Ab orco usque ad coelum "from Hades all the way to Heaven" by Louis Brandeis
is also found.
In Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479, the Court noted that the phrase was 'colourful', but said that it was well settled in the common law that a land owner had rights in the air immediately above the land, extending in particular to signs overhanging from adjacent properties. The right did not extend though to more than was 'necessary for the ordinary use and enjoyment of the land and structures upon it'. Planes, hot air balloons, and the like, would not commit a tort of trespass by merely passing over a person's property.
In Star Energy Weald Basin Limited and another v Bocardo SA [2010] UKSC 35, the UK Supreme Court (having heard argument that the principle was no longer relevant to land ownership) held that the principle "... still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance. It is an imperfect guide, as it has ceased to apply to the use of airspace above a height which may interfere with the ordinary user of land [cf Bernstein, above]..." and that "... the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else".
The property right to air superincumbent to land was confirmed in Kelsen v. Imperial Tobacco Co. [1957] 2 QB 334, where a sign erected on a building that overhung the plaintiff's property committed the tort
of trespass, even though no harm or nuisance was caused by it. An injunction was granted to the landowner causing the sign to be removed.
The "ultimate demise" of ad coelum in the United States came in the United States Supreme Court case United States v. Causby
in 1946. In the Causby case:
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for [for] whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell) often appearing in the shorter form Cuius est solum eius est usque ad coelum, omitting et ad inferos "and to hell", is a principle of property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, stating that property holders have rights not only to the plot of land itself, but also to the air above and (in the broader formulation) the ground below.
In modern law, this principle is still accepted in limited form, and the rights are divided into air rights
Air rights
Air rights are a type of development right in real estate, referring to the empty space above a property. Generally speaking, owning or renting land or a building gives one the right to use and develop the air rights....
above and subsurface rights below. Property holders generally have a right to the space immediately above and below the ground – preventing overhanging parts of neighboring buildings – but do not have rights to control flights far above their property, or subway construction below. In dense urban areas, air rights may be transferable (see transferable development rights) to allow construction of new buildings over existing buildings.
The phrase (in air form) is credited to 13th century Italian jurist Accursius, and is said to date in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
to the time of Edward I. It was more recently promulgated, in broad form (air above and ground below) by William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
in his influential treatise Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
(1766); see origins, below, for details. This article primarily discusses the applications to air rights.
Applications
As the name describes, the principle is that a person who owns a particular piece of land owns everything above and below it as well. Consequently, the owner could prosecute trespassTrespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
against people who violated the border but never actually touched the soil. As with any other property rights, the owner can sell or lease it to others, or it may be taken or regulated by the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
.
For example, suppose three people owned neighboring plots of land. The owners of the plots on the ends want to build a bridge over the center plot connecting their two properties. Even though the bridge would never touch the soil of the owner in the middle, the principle of cuius est solum would allow the middle owner to stop its construction or demand payment for the right to do so.
By the same principle, a person who wants to mine
Mining
Mining is the extraction of valuable minerals or other geological materials from the earth, from an ore body, vein or seam. The term also includes the removal of soil. Materials recovered by mining include base metals, precious metals, iron, uranium, coal, diamonds, limestone, oil shale, rock...
under somebody's land would have to get permission from the owner to do so, even if the mine entrance was on neighboring land.
Origins
The phrase, in air form, is credited to the glossatorGlossator
The scholars of the 11th and 12th century legal schools in Italy, France and Germany are identified as glossators in a specific sense. They studied Roman Law based on the Digestae, the Codex of Justinian, the Authenticae The scholars of the 11th and 12th century legal schools in Italy, France and...
Accursius in the 13th Century. It has been suggested that the principle was brought to England by Accursius's son, Franciscus Accursius
Franciscus Accursius
Accursius was an Italian jurist. He is notable for his organization of the glosses, the medieval comments on Justinian's codification of Roman law, the Corpus Juris Civilis...
, who came to England with Edward I on the latter's return from the crusades. The principle was firmly established in common law by Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
in Bury v. Pope (1587), which gives the first statement in English law of the principle, writing (Liber 1, section 1, page 4, section "Terra" (earth)):
The reporter's note to this case ascribes the maxim to the time of Edward I, which accords with the attribution to Accursius (father and son). Two other cases around 1600 also use the principle, and a number of 19th century cases also apply it.
The phrase appears in Blackstone's Commentaries, Book 2, Chapter 2, p. 18:
This formulation, though it omits the et ad inferos "and to hell" wording, includes that interpretation ("and the center of the earth"). Largely through the influence of Blackstone, this broader formulation became influential in American law
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
. See Sweeney reference for various formulations of the principle in Anglo-American law.
The principle does not occur in classical Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
. The phrase was used by Accursius in discussion of rights to have burial plots or tombs free from the interference of an overhanging building. In Coke's formulation, he cites three cases involving birds; the circa 1600 cases involve overhanging roofs, while the 19th century cases address diverse topics. The principle attracted increased interest in the 20th century with the development of airplanes occasioning much discussion, particularly in the 1930s, and the development of space travel yielding further discussion in the 1960s; some earlier discussion had also occurred around hot air balloons.
In American law, the formulation Ab orco usque ad coelum "from Hades all the way to Heaven" by Louis Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
is also found.
Modern history
The ad coelum doctrine began to fall into disfavor with the advent of air travel:
After the first hot-air balloon flight in 1783, people began to realize that ad coelum could lead to absurd results. Jurists occasionally invoked aerial-balloon trespass as an example of a trivial injury for which the law wouldn't provide redress, and it appears that no one ever sued a balloonist just for flying over. . . . [E]ven if the balloonists' flights were technically illegal, "the law was out of step with the expectations of the parties, in that neither landowners nor balloonists thought there was anything wrong with overflights"
Although everyone tolerated balloons, the invention of the airplane forced the legal world to seriously rethink the aerial-trespass problem. Most everyone found the old rule undesirable, but people disagreed on how it could be discarded. Adherents of the common-law view that judges "found" the law (in the people's customs or through reason) had to argue either that earlier courts erred in adopting the principle from Roman law (i.e., they argued that this wasn't actually the Romans' rule), or that the earlier rule was narrower in scope than its wording suggested. Legal positivists
Legal positivismLegal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
had an easier argument: if judges just "make" law, then they could now make it one way instead of another. And legal realistsLegal realismLegal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
could simply predict that judges would modify the law because the facts of cases would persuade them to do so.
In Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479, the Court noted that the phrase was 'colourful', but said that it was well settled in the common law that a land owner had rights in the air immediately above the land, extending in particular to signs overhanging from adjacent properties. The right did not extend though to more than was 'necessary for the ordinary use and enjoyment of the land and structures upon it'. Planes, hot air balloons, and the like, would not commit a tort of trespass by merely passing over a person's property.
In Star Energy Weald Basin Limited and another v Bocardo SA [2010] UKSC 35, the UK Supreme Court (having heard argument that the principle was no longer relevant to land ownership) held that the principle "... still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance. It is an imperfect guide, as it has ceased to apply to the use of airspace above a height which may interfere with the ordinary user of land [cf Bernstein, above]..." and that "... the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else".
The property right to air superincumbent to land was confirmed in Kelsen v. Imperial Tobacco Co. [1957] 2 QB 334, where a sign erected on a building that overhung the plaintiff's property committed the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of trespass, even though no harm or nuisance was caused by it. An injunction was granted to the landowner causing the sign to be removed.
The "ultimate demise" of ad coelum in the United States came in the United States Supreme Court case United States v. Causby
United States v. Causby
United States v. Causby was an important United States Supreme Court that held that the ancient common law doctrine of ad coelum had no legal effect "in the modern world." In the case, Causby sued the United States for trespassing on his land, complaining specifically about how "low-flying...
in 1946. In the Causby case:
low-flying military planes caused the plaintiffs' chickens to "jump up against the side of the chicken house and the walls and burst themselves open and die" . . . The plaintiffs sued the government, arguing that they were entitled to compensation under the takings clause of the Fifth Amendment.
The court's decision, authored by Justice William O. Douglas
William O. DouglasWilliam Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, could have resolved the case on a narrow ground by simply holding that there was a taking of land because the government's flights affected the land. Justice Douglas did reach that conclusion, but then he went much further and opined on what airspace landowners do and do not own. He wrote that "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run" . . . Thus, a landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface."
See also
- Air rightsAir rightsAir rights are a type of development right in real estate, referring to the empty space above a property. Generally speaking, owning or renting land or a building gives one the right to use and develop the air rights....
- AirspaceAirspaceAirspace means the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere....
, an analogous concept in international lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond... - Australian mining lawAustralian mining lawAustralia mining law governs the exploration and extraction of minerals and petroleum in Australia. It differs substantially from the mining laws of other common law countries, the most important differences arising from the policy decision that the Crown should own all minerals.- History of mining...
- Energy lawEnergy lawEnergy laws govern the use and taxation of energy, both renewable and non-renewable. These laws are the primary authorities related to energy...
- Mineral rightsMineral rights- Mineral estate :Ownership of mineral rights is an estate in real property. Technically it is known as a mineral estate and often referred to as mineral rights...
- Riparian rights
- Right to light – right to light passing through adjacent air space
- Property LawProperty lawProperty law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
- United States v. CausbyUnited States v. CausbyUnited States v. Causby was an important United States Supreme Court that held that the ancient common law doctrine of ad coelum had no legal effect "in the modern world." In the case, Causby sued the United States for trespassing on his land, complaining specifically about how "low-flying...
External links
- Huebert, Jacob H. Who Owns the Sky?, Mises Institute
- The Straight Dope: Can I declare a "no-flight zone" over my house?