Introduction
The traditional starting point for defining land in England and Wales is rooted in two ancient Latin maxims. The first, 'cuius est solum, eius est usque ad coelum et ad inferos', translates to 'the person who owns the land owns everything extending to the heavens and to the depths of the earth'. The second, 'quicquid plantatur solo, solo cedit', means 'whatever is attached to the ground becomes a part of it'. These principles suggest an absolute and extensive form of land ownership. This essay will critically analyse the development of the law in these areas, arguing that while the maxims provide a theoretical foundation, they have been so significantly limited by both judicial decisions and statutory intervention that they are no longer an accurate reflection of the modern law. The essay will examine each maxim in turn to evaluate the extent to which the law has departed from these traditional definitions in response to social, economic, and technological change.
The Vertical Extent of Land: Cuius Est Solum…
The maxim cuius est solum, eius est usque ad coelum et ad inferos suggests that a landowner's rights are absolute, both vertically into the sky and downwards into the earth. However, this seemingly straightforward principle has been substantially qualified by the courts and Parliament, particularly in relation to airspace and the subsoil.
Rights in Airspace: '…up to the heavens'
The 'ad coelum' part of the maxim, if applied literally, would create significant problems for modern life, particularly for aviation. The courts have therefore sought to balance the rights of the landowner with the public interest. Early cases seemed to uphold the maxim strictly. For instance, in Kelsen v Imperial Tobacco Co,¹ an injunction was granted for the removal of an advertising sign that projected a mere eight inches into the claimant's airspace, confirming that an intrusion into the lower airspace could constitute a trespass.
However, the landmark case of Bernstein of Leigh (Baron) v Skyviews & General Ltd² marked a significant departure from a literal interpretation. The defendant flew a light aircraft over the claimant's country house to take aerial photographs. The claimant argued this was a trespass into his airspace. Griffiths J rejected the claim, holding that the maxim was a 'fanciful notion'.³ He formulated a new test, stating that an owner's rights in the airspace above their land extend only to 'such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it'.⁴ Above that height, the landowner has no greater rights than any other member of the public. This judicial recalibration was a pragmatic response to the economic and social realities of the 20th century, particularly the necessity of air travel. Indeed, this is reinforced by statute. Section 76(1) of the Civil Aviation Act 1982 provides that no action in trespass or nuisance shall lie by reason only of the flight of an aircraft over any property 'at a height above the ground which… is reasonable'. The law has effectively prioritised the public benefit of aviation over the absolute territorial claims of individual landowners. As one academic notes, the development of technologies like commercial drones further challenges any residual strength in the maxim, necessitating legal frameworks that balance privacy with commercial innovation.⁵ Therefore, the 'ad coelum' principle is largely defunct, replaced by a test of reasonableness and practical enjoyment.
Rights in the Subsoil: '…down to the depths'
In contrast to airspace, the 'ad inferos' element of the maxim has been treated as having more substance. The Supreme Court case of Bocardo SA v Star Energy UK Onshore Ltd⁶ affirmed that ownership rights do extend deep into the subsoil. In this case, Star Energy had drilled wells that passed diagonally between 800 and 2,800 feet beneath Bocardo’s land without its permission to extract petroleum from an adjacent oilfield. The Supreme Court held this was a trespass, with Lord Hope stating that the owner of the surface is the owner of the strata beneath it, including the minerals found there, unless they have been alienated by a conveyance, at common law or by statute.⁷
Despite this strong affirmation, the rights of the landowner are again significantly curtailed by statute, reflecting political and economic priorities. The Crown has long held prerogative rights to precious metals (gold and silver). More significantly, the Petroleum Act 1998 vests ownership of all petroleum in the Crown, and the Coal Industry Act 1994 vests ownership of coal in the Coal Authority. In Bocardo, while trespass was established, the damages awarded were modest because the petroleum being extracted did not belong to Bocardo. Furthermore, in response to the development of hydraulic fracturing ('fracking'), the Infrastructure Act 2015 created a statutory right to use 'deep-level land' (land at least 300 metres below the surface) for the purpose of exploiting petroleum or geothermal energy, without the landowner's consent. This demonstrates a clear political decision to facilitate energy extraction, overriding the landowner's common law rights. Nigel Gravells argues that the concept of ownership in English law is better understood as a bundle of rights rather than an absolute dominion, and these statutory interventions are a prime example of the state removing certain 'sticks' from the landowner's bundle for public purposes.⁸ Thus, while a landowner theoretically owns the subsoil, the most valuable resources within it are often owned by the state, rendering the 'ad inferos' maxim of limited practical value.
Fixtures and Chattels: Quicquid Plantatur Solo, Solo Cedit
The second maxim, quicquid plantatur solo, solo cedit, establishes the principle that items attached to the land become part of the land itself. This is the basis for the distinction between fixtures (part of the realty) and chattels (personal property). However, like the cuius est solum maxim, this rule is not applied absolutely. The courts have developed a two-part test to determine an object's status, first set out in Holland v Hodgson.⁹
The test considers first, the degree of annexation, and second, the purpose of annexation. The degree of annexation raises a presumption: an object resting on its own weight is presumed to be a chattel, whereas an object affixed to the land, even slightly, is presumed to be a fixture. However, this presumption can be rebutted by the second, and now more important, part of the test: the purpose of the annexation. The court asks whether the object was affixed for the better enjoyment of the object itself (in which case it remains a chattel) or for the permanent improvement of the land (in which case it becomes a fixture).
The case law demonstrates the primacy of the purpose test. In Leigh v Taylor,¹⁰ valuable tapestries tacked to wooden frames and nailed to the wall were held to be chattels. The House of Lords reasoned that the purpose of the attachment was simply to display the tapestries as ornaments, not to improve the building itself. Conversely, in D’Eyncourt v Gregory,¹¹ stone statues and garden seats resting on their own weight were deemed to be fixtures because they were part of the overall architectural design of the house and its grounds.
The law in this area was further considered in Elitestone Ltd v Morris,¹² where a wooden bungalow resting on concrete blocks was held to have become part of the land. Lord Lloyd noted that the bungalow could not be removed except by its destruction, which indicated that it was intended to be a permanent feature of the site. He suggested a tripartite classification of objects as either a chattel, a fixture, or 'part and parcel of the land' itself.¹³ More recently, Botham v TSB Bank plc¹⁴ provided practical guidance on common household items, holding that items like carpets and curtains are chattels, while fitted kitchen units are fixtures. This demonstrates the test's application in everyday contexts, where intention is decisive. As Michael Haley has commented, the reliance on an objective "purpose" test has led to "a degree of uncertainty and inconsistency" in the law, moving it away from the simple physical reality suggested by the maxim.¹⁵ The maxim is therefore not a rule but merely a starting point for a nuanced and fact-sensitive inquiry.
Conclusion
In conclusion, the common law definitions of land encapsulated in the maxims 'cuius est solum…'_ and _'quicquid plantatur solo…'_ are no longer an accurate reflection of the law in England and Wales. They have been hollowed out by generations of judicial interpretation and extensive statutory intervention. The concept of owning land 'up to the heavens' has been replaced by a pragmatic test of reasonable enjoyment, subordinated to the economic and social necessity of aviation. Similarly, ownership 'down to the depths', while affirmed in principle by Bocardo, has been rendered practically limited by statutory expropriation of valuable resources like coal and petroleum in pursuit of national economic and energy policies. The maxim 'whatever is attached to the ground becomes part of it' has been transformed into a flexible two-part test where the object's physical connection is less important than the objective purpose of its attachment. In both areas, the law has evolved from upholding notions of absolute ownership to a more complex and qualified system that seeks to balance the rights of the individual landowner against broader public and economic interests. The maxims survive only as historical starting points, or as one judge put it, 'imperfect guide[s]',¹⁶ to a far more nuanced legal reality.
Word Count: 1064
— ¹ Kelsen v Imperial Tobacco Co [1957] 2 QB 334. ² Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479. ³ ibid 487. ⁴ ibid 488. ⁵ Lucy M. Austin, 'Property Rights in Airspace: The Legal and Economic Consequences of a "Spaced Out" World' (2020) 84 Conv 247. ⁶ Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] 1 AC 380. ⁷ ibid [27] (Lord Hope). ⁸ Nigel Gravells, 'Ownership and Possession in English Law' in G E van Maanen and A J van der Walt (eds), Property Law on the Threshold of the 21st Century (Maklu 1996). ⁹ Holland v Hodgson (1872) LR 7 CP 328. ¹⁰ Leigh v Taylor [1902] AC 157. ¹¹ D'Eyncourt v Gregory (1866) LR 3 Eq 382. ¹² Elitestone Ltd v Morris [1997] 1 WLR 687 (HL). ¹³ ibid 691. ¹⁴ Botham v TSB Bank plc (1996) 73 P & CR D 1. ¹⁵ Michael Haley, 'The Law of Fixtures: an Unprincipled Metamorphosis?' [1998] Conv 137, 146. ¹⁶ Mitchell v Cowie (1964) 11 WIR 187, 192, [1964] 7 WIR 118 (CA of Trinidad and Tobago) (Wooding CJ). Although not an English case, this quote aptly summarises the position.
Bibliography
Cases
Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] 1 AC 380 Botham v TSB Bank plc (1996) 73 P & CR D 1 D'Eyncourt v Gregory (1866) LR 3 Eq 382 Elitestone Ltd v Morris [1997] 1 WLR 687 (HL) Holland v Hodgson (1872) LR 7 CP 328 Kelsen v Imperial Tobacco Co [1957] 2 QB 334 Leigh v Taylor [1902] AC 157 Mitchell v Cowie (1964) 11 WIR 187
Legislation
Civil Aviation Act 1982 Coal Industry Act 1994 Infrastructure Act 2015 Petroleum Act 1998
Books
Dixon M, Modern Land Law (12th edn, Routledge 2021) Gravells N, 'Ownership and Possession in English Law' in G E van Maanen and A J van der Walt (eds), Property Law on the Threshold of the 21st Century (Maklu 1996)
Journal Articles
Austin L M, 'Property Rights in Airspace: The Legal and Economic Consequences of a "Spaced Out" World' (2020) 84 Conv 247 Haley M, 'The Law of Fixtures: an Unprincipled Metamorphosis?' [1998] Conv 137 Sparkes P, ‘The Measurement of Damage for Subsurface Trespass’ (2012) 76 Conv 165
